New case shows employers will find it harder to use lawyers in unfair dismissal hearings

One of the first unfair dismissal cases under the new Fair Work Act suggests employers who find themselves appearing before an unfair dismissal hearing may not be able to have lawyers represent them.

Under the former industrial umpire, the Australian Industrial Relations Commission, it was generally accepted that employers could bring in specialist IR lawyers to represent them.

But one of the state objectives of the Rudd Government’s Fair Work Act was to “de-lawyer” the hearings process.

A recent unfair dismissal case heard by Fair Work Australia, between Roger James Rodgers and Hunter Valley Earthmoving, highlighted this stance.

The Construction, Forestry, Mining and Energy Union objected to law firm Freehills representing HVE.

Commissioner Harrison agreed and blocked Freehills from representing HVE, saying the HVE executive appointed to represent the company was an experienced advocate and the matter was not a complex one.

“On my reading of the submissions and witness statements I am of the opinion that this is not a matter which requires forensic cross-examination or is of a complex nature. I note the applicant admits to engaging in the behaviour which gave rise to his termination. In my view this matter is a relatively simple factual contest.”

Industrial relations lawyer Peter Vitale from CCI Lawyers says that while the specific circumstances of the case need to be taken into account – specifically its straightforward nature and the experience of the advocates involved – it does highlight a shift from accepted practice under the AIRC.

“The prerequisite for legal counsel appearing have become more restrictive,” Vitale says.

If HVE was to lose the case, he says the company may appeal on the grounds that it has been denied natural justice because its legal representation was barred.

In other FWA news, the decision from the first unfair dismissal case heard by Fair Work Australia has been announced.

William Patrick Ward took action against his former employer Arcadian Nominees (trading as Instant Waste Management) after being dismissed in late July.

Commissioner Williams found the employer failed to follow the Small Business Unfair Dismissal Code and order Arcadian to pay Ward $9,522 in lost wages.