In August 2008 the Australian Industrial Relations Commission (AIRC) awarded Mr Emanuel Marques 26 weeks pay, as compensation for the unfair termination of his employment with Doltone House, a function centre in Sydney. Mr Marques had been employed as the employer's Venue Operations Manager. At the hearing the employer was self-represented by one of its directors and their HR manager. Following the hearing the company sought legal advice to discover that the AIRC had no jurisdiction to consider Mr Marques' unfair termination claim at all. Regardless, the AIRC has refused to revoke the compensation order.
To rub salt into the wound, following his success at the hearing, Mr Marques then applied to the AIRC for an order that Doltone pay his legal costs. At the time of writing this article the costs application does not appear to have been finalised.
The employer originally defended the claim upon the basis that Mr Marques' performance in his position had not been satisfactory. After the hearing, at which that defence was roundly rejected and the compensation order was made, the company sought legal advice about its position, apparently for the first time since the claim had been brought.
At that time they discovered that Mr Marques could not have brought an unfair dismissal claim – regardless of how 'unfair' the termination of his employment might have been – because under the current unfair termination provisions, no claim can be made if the employer employs '100 employees or fewer'; as was Doltone's situation.
The employer could have had the claim disposed of from the outset, without even appearing before the AIRC, had it realised and raised that objection when the claim was first brought. It need not have gone to a conciliation conference; it would not have had to prepare witness statements and prepare for the hearing; it would not have had to appear at the hearing; and it could never have had any orders made against it.
As a result, with the assistance of its newly appointed lawyers, Doltone went back to the AIRC in February this year and asked the AIRC to revoke the original compensation order.
The Commission refused to revoke the order, principally upon the basis that Doltone was bound by its ignorance of the legislation (our words), and having chosen to run a case without taking a jurisdictional objection available to it, could not after the event seek to raise the objection. The 'horse had bolted' – with a handful of the employer's dollars.
The Fair Work Bill and unfair dismissal
Historically the unfair termination procedures in the AIRC have, to some extent, encouraged parties to self- represent. For example, the rules of evidence do not strictly apply, and lawyers can only appear for parties with the Commission's permission.
Today, however, the legislation has become so complex that those who choose to self-represent run some risks – as the employer in Doltone has learned – and in recognition of this the AIRC rarely refuses to grant permission for lawyers to appear. Mr Marques was himself legally represented, by both a solicitor and a barrister, in his claim against Doltone.
If the current federal reform agenda unrolls according to plan, a new and more broadly applicable unfair dismissal jurisdiction will commence on 1 July 2009. Among other things, the '100 employees or fewer' limit upon the jurisdiction will be removed, and the way in which the jurisdiction will work in practice will change significantly.
On paper, the rules about legal representation do not appear as if they will change dramatically in that representation, in unfair dismissal proceedings, will still require permission from the arbiter. The government is also keen to sell the message that the new system will be fairer, less complex and less expensive for participants. How it will all work in the real world remains to be seen.
Some of the background policy rhetoric suggests that lawyers will have less of a role to play in unfair dismissal proceedings than currently occurs. We doubt that. The new legislation is certainly less complex than the current Act, but it is far from user-friendly.
Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
