FWC allows legal representation for employer in bullying hearing

In brief 3 min read

The Fair Work Commission (the FWC) has allowed an employer, with some in-house employment relations capability, to be represented by a lawyer in a hearing dealing with an application to stop bullying.¹

Key takeaways

• In-house representation may be inappropriate where an applicant's employment remains on foot.
• Subject to legislative requirements, an employee respondent in the anti-bullying jurisdiction of the FWC may be entitled to representation, even if the employer has a competent internal representative, given the employer's allegiance may be unclear.

Background

An employee, 'AB', made an application to the FWC for an order to stop bullying. AB alleged that she was being bullied at work by another employee, 'XY'. During a telephone conference before the FWC, AB was represented by a union, and, with leave, the employer and XY were represented by a law firm. The union opposed an application made by the law firm to represent the employer and XY at an upcoming hearing.

The Fair Work Act 2009 (Cth) provides that permission may only be granted for a party to be represented if:

• it would enable the matter to be dealt with more efficiently, taking into account its complexity;
• it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
• it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Among other things, the union argued that the employer was a large organisation with a dedicated human resources team, and employed an employee relations specialist, 'CD', who had experience appearing before the FWC.

The decision

The FWC noted that the decision to allow a party to be represented is discretionary, rather than automatic, even where one or more of the legislative requirements have been met. However, in this case, a number of factors weighed in favour of allowing representation, including:

• the employment was still on foot and AB was still at work. Therefore, the relationship between AB and CD needed to be considered. If CD was required to represent the employer, there was a strong prospect of the relationship between the two becoming combative;
• an anti-bullying application is different from an unfair dismissal case, where a company's in-house representative can argue 'as fiercely as they see fit' without damaging an employment relationship;
• it was inappropriate to sideline CD from ongoing dealings with AB on account of the proceedings when AB should be able to approach CD at work about unrelated matters;
• if CD was unable to represent the employer, the employer would be unable to effectively represent itself;
• an employer in an anti-bullying application is not always a respondent as such; rather, it is an interested party and may be unsure of its allegiance. In this case, the true respondent was XY, for whom it was likely to be a complex matter; and
• CD was unable to give legal advice to XY, who was entitled to such advice and unable to represent himself effectively, especially where a union representative could advocate for AB.