By Clayton Payne
In a recent decision of the Fair Work Commission, the respondents to a bullying complaint were permitted legal representation at an upcoming arbitration.
In the decision of H v. Centre and Others, the employer (known as ‘the Centre’) applied to have itself, and two employees named in the complaint, legally represented. By way of contrast, the complainant was represented by her husband who was not a lawyer “ … or otherwise skilled in workplace relations tribunal practices”.
Among other things, as part of her complaint, the complainant alleged that her employer did not have policies or procedures in place dealing with bullying, or alternatively, did not follow its own policies and procedures.
In granting leave to the Centre and its employees to be represented, Commissioner Wilson found that “ … the appearance of Counsel in this matter will most likely allow the matter to be dealt with more efficiently taking into account the number of witnesses to be heard and the issues to be determined by the Commission”.
Parties do not have an automatic right to legal representation in such matters as bullying complaints. However, noting the type of orders that can be made by the Commission, which can have a significant impact on a business, employer’s would be well advised to seek appropriate advice with a view to obtaining representation in such cases. This case shows that the Fair Work Commission will entertain applications for representation (even when one party does not have it) particularly in circumstances where it will assist in the efficient running of the case. It is submitted that in overwhelming majority of such cases, legal representation by experienced practitioners will substantially reduce the time it will take for the Commission to deal with a matter, saving the parties time and further stress.
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