ASX 100 company Asciano has sufficient internal legal and HR resources to be able to represent itself in the IR tribunal rather than rely on external lawyers, a Fair Work Commission full bench has ruled.
Vice President Adam Hatcher and Deputy Presidents Peter Sams and Jeff Lawrence yesterday refused the company permission to challenge Commissioner Bernie Riordan’s refusal to allow it legal representation in defending an unfair dismissal case.
Commissioner Riordan said in his ruling on March 25 this year that the matter wasn’t so complex that it required legal representation and he was "confident" Asciano "can represent itself effectively based on the skills and experience of its employees".
In a hearing in Sydney last week, Asciano told the bench that Commissioner Riordan's decision involved a "manifest injustice" because the dismissed employee would be represented by a union while the company would be forced to use its internal resources.
The RTBU argued that Asciano could represent itself effectively using its qualified HR practitioners.
It said it is a large company with significant resources and a sophisticated HR department.
Further, it said, s596(2) had been designed to put everyone on an even footing.
The bench noted that Asciano was challenging an interlocutory decision, and it would "not usually be the case that permission would be granted to appeal such a decision".
But it said that "having regard to the internal legal, human resources and other specialist personnel available" to Asciano, it didn't consider that the decision "manifests any injustice" to the company.
It added that Asciano's particular concern that its internal specialists might not be available on the programmed hearing dates was "ameliorated" by the likelihood that the matter would probably have to be rescheduled.
Further, the bench said, the combination of rule 12(1) of the 2013 Fair Work Commission Rules and s596(1) meant the ruling wouldn't impair Asciano's capacity to have lawyers perform its "out-of-court" preparation work.
"This further ameliorates the effect of the Decision, which is confined to in-court representation."
The bench also raised the prospect that the matter could be dealt with as a determinative conference under s398, which, with its informal procedures, might be "more appropriate" for a self-represented litigant like Asciano, rather than a hearing under s399.
The bench denied the NSW Bar Association leave to to intervene, because the appeal didn’t give rise to "any issue or principle or or general application" in which it had a genuine interest.
It said the submissions the Bar Association intended to advance "did no more than agitate an outcome based on the particular facts of the case and in that respect did no more than echo the case of [Asciano]".
The RTBU said yesterday that the full bench ruling "reaffirms the original intention of the Fair Work Commission, as expressed in the Fair Work Act, to be an informal forum for the resolution of workplace disputes.”
“Our experience, however, has been that employers routinely use trained lawyers to perform work that could and should be done by human resources staff.
"This has created a legal arms race, where everyone has to 'lawyer up' in order to maintain fairness in Commission proceedings."
The union said the tribunal "has now sent a clear message to major employers that they must hire staff qualified to handle simple matters, and can no longer rely on big law firms to run all of their disputes, including unfair dismissals."
Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 (21 April 2015)