FWC imposes stringent conditions on employer's legal representation

A senior FWC member has approved an employer's request for legal representation in a dismissal case, but not before requiring hearings be conducted in private, that he be free to provide "appropriate" guidance to the unrepresented former worker, and that he retain the power to revoke permission if the lawyer complicates proceedings.

In a decision highlighting the continuing impact of last year’s "shadow lawyers" ruling (see Related Article) on what was previously a reasonably frictionless process, Deputy President Peter Anderson ultimately allowed Shace Toop Trading Trust T/A Toop & Toop Real Estate to be represented on the matter of whether its high-earning former sales manager was covered by the Real Estate Industry Award 2010.

The deputy president's 11-page decision is the latest to address the Fair Work Act's concept of representation under s596, a subject examined closely in October's full bench Fitzgerald v Woolworths ruling.

Deputy President Anderson's reliance on findings expressed in Fitzgerald stretches back to October when, three days after the bench handed down its decision, he became the first tribunal member to cite the case in a determination allowing both parties to be represented.

In this week's decision, the deputy president said that should the jurisdictional issue of whether the former sales manager was protected from unfair dismissal under the award be decided in his favour, either party seeking to be represented by a lawyer or paid agent in subsequent proceedings would need to make "a fresh request for permission" under s596.

Toop & Toop's application to be legally represented on the question of award coverage had been opposed by the former sales manager on the basis the company of more than 100 employees has an HR manager and a legally-trained chief executive.

Internal representatives "unlikely" to be effective

Turning first to the HR manager's capacity, Deputy President Anderson noted that the "technical legal question about award coverage [included] the potential need to examine and cross examine witnesses, and consider and debate past authorities about the interpretation and coverage of awards".

"Not all human resource practitioners are equipped to effectively discharge this obligation," observed the deputy president.

"In this case, I am satisfied that Toop's human resource manager has no such specific expertise."

The deputy president then noted that while Toop & Toop's chief executive is a lawyer, "she has not held a practising certificate and does not currently do so".

"She has occasionally (twice at least) appeared in a civil court or tribunal for the employer but on relatively simple matters and in her capacity as an executive, not as legal practitioner," he continued.

"She says she has no specialist industrial relations knowledge or experience.

"I note that it is not the Commission's role to determine who the representative of a party is or should be.

"Nor should it be assumed that persons working in industry with legal qualifications are necessarily effective representatives at a hearing dealing with specialist industrial issues.

"Having regard to the overall circumstances, I find that internal Toop representatives would be unlikely to 'effectively' represent the employer in this sense of the word."

Conditions to account for fairness

Deputy President Anderson said that the complexity of the coverage question was heightened by the sales manager's indication that he would claim an estoppal on the basis that Toop & Toop had previously contended he was covered by the award.

"Legal principles of issue estoppel may [therefore] arise," said the deputy president.

"As a general proposition, an application which raises substantive jurisdictional issues (such as whether the applicant was a person protected from unfair dismissal) involves an additional degree of complexity.

"Even where facts associated with a jurisdictional issue are simple or not contested, determining that question is a legal matter."

In ultimately granting permission for representation, the deputy president added that he would impose conditions "that take into account fairness between the parties".

"I will conduct proceedings on 23 April 2018 by determinative conference, not in open court.

"As noted by the Commission in Asciano Services Pty Ltd v Hadfield: 'The more informal procedures of a determinative conference may be more appropriate for a self-represented litigant'.

"Should it be necessary, I will, consistent with my independent role as a statutory decision-maker, intervene directly during the hearing and provide an appropriate level of guidance to [the sales manager] on the conduct of proceedings and the taking and testing of evidence, so as to be satisfied that he is able to understand the issues, present his case and test that of the employer.

"And should circumstances alter or if I form the view that the employer's legal representative is not contributing to the efficient conduct of proceedings, I will consider whether the grant of permission should be revoked."

Mr Robert Caruana v Shace Toop Trading Trust T/A Toop & Toop Real Estate [2018] FWC 2231 (19 April 2018)