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
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
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
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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