Self-representation in an unfair dismissal claim
The CaseStandish v Craig Arthur Pty Ltd (2015)
When Mr Standish’s employment was terminated by Craig Arthur Pty Ltd (Craig Arthur), Mr Standish commenced unfair dismissal proceedings against his former employer and chose to represent himself. Craig Arthur made an application to the Fair Work Commission (FWC) to be represented in the proceedings by a lawyer. Mr Standish objected, stating it would be unfair for him, given he was self-represented.
Section 596(2) of the Fair Work Act 2009 (Cth) (FW Act) provides that the FWC may grant permission for a party to be represented by a lawyer or paid agent in a hearing or conference only if:
- it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter;
- it would be unfair not to allow the party to be represented:
- because the party cannot represent themselves effectively; or
- taking into account fairness between all parties in the same matter.
Craig Arthur argued:
- its director had little experience in legal matters and industrial relations matters and did not employ anyone who was proficient in advocacy matters;
- it would be unfair not to allow Craig Arthur to have legal representation, as the employer was the director and did not have staff to conduct the matter;
- it would be placed at a disadvantage if it did not have legal representation;
- in relation to matters pertaining to other courts, a corporate entity is not allowed to be represented by a director and employee because it must have legal representation, and this should apply in relation to Craig Arthur in this case;
- Mr Standish’s daughter was a solicitor who worked in advocacy and could represent the applicant, to the detriment of Craig Arthur;
- both parties should be represented by persons proficient in advocacy, as this would result in a more efficient and cost-effective conduct of the matter; and
- representation would provide fair and equitable grounds for all parties.
Mr Standish opposed the application, advising that:
- his daughter had a legal qualification but was not a legal practitioner, and she would not be representing him in the matter; and
- the issues to be determined in relation to the application were not complex and that it would be fair and equitable for both parties to represent themselves.
The FWC rejected Craig Arthur’s application for legal representation, indicating that the matter did not involve issues of any significant complexity. It was simply a question of whether Mr Standish was dismissed at Craig Arthur’s initiative.
It also noted that Mr Standish would represent himself and if his daughter was present, it would be only to provide support, not representation.
When employees choose to represent themselves in unfair dismissal cases, the FWC may rule that an employer cannot have legal representation at the hearing.
Nevertheless, a lawyer can help you prepare the case and give assistance and guidance.
For more information, refer to chapter F4 Fair Work Commission Conferences – Self-Representation in your Employment Law Practical Handbook.
Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.
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