Fair Work Commission: G & S Fortunato Group Pty Ltd v J Stranieri [2013] FWCFB 4098
Tuesday 16 July 2013 @ 11.46 a.m. | Industrial Law
A full bench of the Fair Work Commission (FWC) has ruled that an employer wishing to appeal against an order to grant a former employee an extension of time to lodge an unfair dismissal claim, may not have permission to be represented by a lawyer, unless certain circumstances are present.
G & S Fortunato Group Pty Ltd (G & S) dismissed Mr Stranieri who was then granted an extension of time to bring an application for unfair dismissal under s 394 of the Fair Work Act 2009 (the Act). Mr Stanieri was granted the extension on the basis of exceptional circumstances under s 394(3) of the Act, which essentially involved misunderstanding and confusion between the registry and the applicant, Mr Stranieri. G & S sought to not only appeal the order, but permission to be represented by a lawyer at the appeal hearing too.
Under s 596(2) of the Act the FWC may grant permission for a party in a proceeding to be represented by a lawyer only under certain circumstances, including where it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Here it was decided that there was no particular complexity about the matter and although permission to appeal was granted, permission to be represented by a lawyer was denied.
In observing that permission for a lawyer to appear will not be granted as a matter of course, even if the proceeding is an appeal, the Full Bench referred to Flick J in Warrell v Fair Work Australia [2013] FCA 291 (4 April) at [25]:
“The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.”
Mr Stranieri’s application for an extension of time was remitted to Commissioner Wilson for a rehearing on 9 August 2013.
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