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A recent decision of the Fair Work Commission may force employers to fend for themselves in proceedings before the Commission, such as unfair dismissal, by denying them the right to even have legal assistance in the background.

In Stephen Fitzgerald v Woolworths Limited:

  • section 596 of the Fair Work Act requires a party involved in a matter before the Fair Work Commission to seek leave to be represented by a lawyer or paid agent
  • the employer (a national supermarket chain with a dedicated HR department) wished to be represented by a lawyer at a contested unfair dismissal hearing
  • this request was refused, however, the Fair Work Commission stated this did not prevent the employer from obtaining background or shadow assistance from its lawyers prior to the hearing
  • on appeal, however, it was held that the concept of legal representation extends beyond mere advocacy at the final hearing and into the realm of advice and/or the preparation of documents beforehand

Employers must be conscious that the right to legal representation in the Fair Work Commission is not automatic or guaranteed and can potentially exclude an employer from having the benefit of pre-hearing legal assistance.

Thus, all employers are strongly encouraged to seek early and proper advice from an employment lawyer as to:

  • whether and when they should lodge a request under section 596
  • if the request is refused (or one is not made), what assistance an employment lawyer can provide in the background to assist an employer to properly prepare their case