Individuals should be prepared to present their case in the Fair Work Commission.
A new case in the Fair Work Commission (FWC) has confirmed that lawyers need to seek permission to represent their clients in matters before it. This means that individuals should be prepared to present their own case if their lawyer is refused permission to represent them.
Proceedings brought within the FWC are intended to be conducted with less procedural formality than other jurisdictions. The general rule under the law is that each party bears their own costs and can only be legally represented with the FWC’s permission. In the past, it has been assumed that permission will be granted as a mere formality, but not anymore.
In this case, the worker, who suffered a mental disability, filed an unfair dismissal case against his employer. The worker was self-represented and the employer was represented by a solicitor. The worker was unsuccessful in his case. On appeal, the FWC found it was unfair of the judge not to have considered and applied the constraints of the law when faced with a party who was mentally disabled and self-represented, against a trained solicitor.
When considering whether to grant permission for parties to be represented, the FWC will look at whether:
- the matter can be dealt with more efficiently, taking into account the complexity of the matter;
- it would be unfair not to allow representation because the person is unable to represent themselves effectively; or
- it would be unfair taking into account fairness between the parties.
If you have a case before the FWC, make sure your solicitor has trained and prepared you as best as they can to conduct your own case.