The Chamber of Commerce and Industry has warned HR practitioners that the FWC is cracking down on external legal representation – which could limit employers' ability to have lawyers in court.
Under the Fair Work Act, any party to proceedings cannot be represented by a lawyer or paid agent unless granted permission by the FWC; although this does not apply to in-house lawyers and union or employer association representatives.
Lisa Burrell, general manager of the Victorian Employers’ Chamber of Commerce and Industry (VECCI), said that the FWC has only recently begun to crack down on external legal representation.
She told HRD magazine that until a recent decision (Warrell v Walton), lawyers were rarely denied permission to be present at hearings.
“The court ordered a re-hearing of a brain-damaged gardener’s case after it found that, in allowing the employer legal representation, the gardener was denied a ‘fair and just’ hearing,” she explained.
“Since then, the FWC has refused to grant permission for representation on numerous occasions.”
Burrell noted that the FWC’s Full Bench rejected one “well resourced” company’s argument that it needed the assistance of a lawyer because of its “high volume of documents and wide range of issues”.
A month later, a Full Bench decided that an ASX-listed company would not be allowed a lawyer, despite the fact that its former employee would be represented by a union advocate.
A message for employers
Ultimately, said Burrell, the issue of representation needs to be considered well in advance of any formal hearings – put simply, HR needs to be prepared in case their externally hired lawyer is denied entry to a tribunal.
“If there’s a decision to proceed with or engage a legal representative, there needs to be a clear understanding of how to self-represent in defending an unfair dismissal, or any other dispute, in case legal representation is denied,” she advised.
Preparing to self-represent
Burrell shared her tips on how HR professionals can best prepare themselves to represent their organisation at a tribunal.
1. Organisation is essential
“Prepare copies of relevant cases and documents to hand up,” Burrell said.
“Create your own document library and ‘case summary’ that cross references your submissions and documents thoroughly.”
2. Understand the setting
“Ensure that you are well versed on the required etiquette and formalities, from addressing the Commissioner, through to how you advocate your case,” Burrell advised.
3. Critically review
According to Burrell, it is “imperative” that you understand the strengths and weaknesses of not only the claimant’s case, but your own.
“This will allow you to best guide the arguments and cross-examination, ‘pulling on the reins’ as needed to highlight the evidence that most strongly supports your submissions,” she explained.
Of course, these preparations can be organised with the help of the legal representative – and Burrell had another suggestion.
“Alternatively, you may wish to discuss engaging an employer association to represent your organisation, or utilise any in-house legal counsel to run the case,” she said.
Experts from the legal industry will be sharing their advice and experiences with HR professionals at the Employment Law Masterclass for HR Managers next month. For more information or to register, click here.