Last month's Warrell v Walton Federal Court judgment has had immediate repercussions for legal representation in the Fair Work Commission, with major law firm Ashurst thrown out of an unfair dismissal case yesterday.
Commissioner Ian Cambridge followed Justice Geoffrey Flick's decision (see Related Article) in refusing leave for the law firm to represent Serco Sodexo Defence Services in the case, finding that to allow it to act against the unrepresented employee applicant would have created an unfair "imbalance".
Commissioner Cambridge said Serco had not met any of the three criteria in s596 of the Fair Work Act to justify legal representation.
He said the case was not sufficiently complex to require lawyers, and that Serco was not incapable of representing itself.
On the issue of fairness, the commissioner if he granted the employer permission for legal representation, "something of an imbalance would emerge whereby it would be represented by a lawyer while the applicant would be self represented".
"The resultant imbalance would create great potential for the absence of a fair and just Hearing as was identified by the Federal Court Judgment in the Warrell case," Commissioner Cambridge said.
The commissioner said s596 contained more stringent requirements for granting permission than under the former Workplace Relations Act 1996, citing Commissioner Greg Harrison's 2009 Rodgers ruling (see Related Article) and Commissioner John Lewin's 2011 Lekos decision (see Related Article).
Azzopardi v Serco Sodexo Defence Services Pty Limited [2013] FWC 3405 (29 May 2013)