‘Unfairness’ in legal representation irrelevant – Fair Work Commission

A recent case before the Fair Work Commission (the Commission) has clarified that a consideration of unfairness between parties is “not necessary” when deciding whether to approve an application for permission to be represented by a lawyer or paid agent pursuant to section 596(2)(a) and (b) of the Fair Work Act 2009 (FW Act).

Valco Group Australia Pty Ltd (the Respondent) applied for representation to defend against an unfair dismissal claim against Mr Monteiro (the Applicant). In its submission the Respondent argued that its French manager was not properly equipped to represent the company in court as English was his second language and he was unfamiliar with the Australian legal system and the Commission. It also argued that the court process would be expedited by legal representation due to the complex nature of the documentation involved in the case and the significant potential for miscomprehension on the manager’s behalf.

Mr Monteiro (the Applicant) objected to permission being granted to the Respondent. The Applicant asserted that the unfair dismissal claim did not raise additional complexity as such material had already been addressed by the parties. Furthermore, the Applicant argued that the Respondent has two employees located in Western Australia who could represent the Respondent in the proceeding and stated that he is also French speaking with English as his second language. In his submission the Applicant claimed that granting permission to the Respondent would result in an “unfair hearing” contrary to the Commission practice note and that he would be willing for the hearing to be adjourned to allow the Respondent to be represented by an employee.

Commissioner Bisset held that permission should be granted to the Respondent to be represented by a lawyer or paid agent. In his decision, Commissioner Bisset upheld the Respondent’s argument regarding the inherent complexity of the matter and recognised that there were no suitable representatives for the Respondent.

Importantly, Commissioner Bisset held that it was unnecessary to consider whether representation would create unfairness between the parties. The Commissioner noted that it is never the case that there is a “true balance in skills, knowledge and/or ability in representation”, and that from the documents filed to the court it was clear the Applicant had an “excellent grasp of the matter… and Commission processes”.

If you have any questions pertaining to seeking legal representation in the Commission matters or the unfair dismissal jurisdiction more generally, please do not hesitate to contact Nick Stevens or Isabella Paganin.

A recent case before the Fair Work Commission (the Commission) has clarified that a consideration of unfairness between parties is “not necessary” when deciding whether to approve an application for permission to be represented by a lawyer or paid agent pursuant to section 596(2)(a) and (b) of the Fair Work Act 2009 (FW Act).

Valco Group Australia Pty Ltd (the Respondent) applied for representation to defend against an unfair dismissal claim against Mr Monteiro (the Applicant). In its submission the Respondent argued that its French manager was not properly equipped to represent the company in court as English was his second language and he was unfamiliar with the Australian legal system and the Commission. It also argued that the court process would be expedited by legal representation due to the complex nature of the documentation involved in the case and the significant potential for miscomprehension on the manager’s behalf.

Mr Monteiro (the Applicant) objected to permission being granted to the Respondent. The Applicant asserted that the unfair dismissal claim did not raise additional complexity as such material had already been addressed by the parties. Furthermore, the Applicant argued that the Respondent has two employees located in Western Australia who could represent the Respondent in the proceeding and stated that he is also French speaking with English as his second language. In his submission the Applicant claimed that granting permission to the Respondent would result in an “unfair hearing” contrary to the Commission practice note and that he would be willing for the hearing to be adjourned to allow the Respondent to be represented by an employee.

Commissioner Bisset held that permission should be granted to the Respondent to be represented by a lawyer or paid agent. In his decision, Commissioner Bisset upheld the Respondent’s argument regarding the inherent complexity of the matter and recognised that there were no suitable representatives for the Respondent.

Importantly, Commissioner Bisset held that it was unnecessary to consider whether representation would create unfairness between the parties. The Commissioner noted that it is never the case that there is a “true balance in skills, knowledge and/or ability in representation”, and that from the documents filed to the court it was clear the Applicant had an “excellent grasp of the matter… and Commission processes”.

If you have any questions pertaining to seeking legal representation in the Commission matters or the unfair dismissal jurisdiction more generally, please do not hesitate to contact Nick Stevens or Isabella Paganin.