Legal expert says lawyers should not be banned from unfair dismissal cases

A former Federal Court judge says the Government’s plan to ban lawyers from unfair dismissal cases may disadvantage employees, and would increase the general costs of going to trial.

Murray Wilcox QC, who was appointed last month as a Government industrial relations adviser, says while an emphasis should be placed on pre-trial dispute resolution, there will always be conflicts that are left unresolved.

“Contrary to… the Rudd Government’s current thinking, I do not believe legal representation should be prohibited,” Wilcox says in The Economics and Labour Relations Review, and argues trials should always be accessible at which “all available evidence is received and evaluated”.

Labor plans to reform the current system by creating Fair Work Australia, a Government initiative through which informal negotiations without lawyers would be the setting for unfair dismissal resolution. It also plans to reform the Howard government’s unfair dismissal exemptions for businesses with fewer than 100 staff, offering 12 month exemptions for businesses with fewer than 15 employees.

Large corporations with experienced human resources staff would be at an unfair advantage during cases, Wilcox says, and unrepresented employees with no legal knowledge often lengthened disputes and forced judges to assist them in trial procedures.

While Wilcox concedes the costs of such representation, he also argues spending could be cut by forcing parties to cover trial costs if they raised “unarguable” points, or unnecessarily delayed the trial.

Peter Vitali, principal of CCI Victoria Legal and SmartCompany legal expert, says the Government “needs to exercise care in saying to a party, ‘you cannot have the representation of your choice’. That certainly raises fundamental questions… about whether parties will be fully able to exercise their right to natural justice.”

Vitali also places cautious emphasis on early dispute resolution. “I think certainly in the initial stages there is some scope for a quick discussion between the parties… perhaps without representation to resolve matters.” He says the Government needs to ensure neither party is disadvantaged.

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