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[2026] FWC 399
General information, not legal advice.
Fair Work Commission
2026-02-09
Original judgment source is linked above.
[19] For a self-represented applicant, Mr Cremona made lengthy (seven pages) and persuasive submissions as to why leave should not be granted for the Employer and Mr Faella.
[20] Mr Cremona submitted that large corporate employers with established human resources functions and access to internal legal advice are generally regarded as capable of representing themselves effectively for the purposes of s.596(2)(b). He further submitted that external counsel increases time through interlocutory skirmishing, expanded objections and formality.
[21] Mr Cremona agreed that the proceedings before the Commission involve:
[22] Mr Cremona submitted that the Employer's and Mr Faella's submissions in respect of legal representation appear directed more toward litigation advantage than genuine efficiency.
[23] Mr Cremona submitted that the issues are fact-bound, narrow and already crystallised in witness statements, so the assistance of Counsel does not materially reduce time. It was submitted that if leave was granted it would more likely increase formality, lengthen proceedings and 'shift the matter away from its preventative purpose'.
[24] Disappointingly, Mr Cremona made a point of the submissions for the Employer and Mr Faella being dated 3 February 2025 instead of 2026. Such nit-picking is unnecessary and weighs against Mr Cremona's submissions where it can be assumed that a skilled legal representative for the Employer and Mr Faella would not raise such a trivial matter before the Commission.
[25] Mr Cremona noted that the group employing entity employs the following people:
[26] It was submitted that the internal expertise is plainly capable of managing and presenting matters before the Commission, including stop-bullying applications. Mr Cremona named nine employees, ranging from Group General Counsel to a HR Advisor who could potentially represent the Employer and Mr Faella.
[27] Mr Cremona submitted that stop-bullying proceedings before the Commission are not strictly adversarial and routinely conducted with parties appearing through HR managers or internal representatives without legal qualifications. He submitted that the Employer is not a small employer, an unsophisticated party or an entity without access to internal expertise.
[28] In respect of Mr Faella's submission that he is unable to effectively represent himself, Mr Cremona noted that Mr Faella's evidence is that he is a sales manager with 23 years in the retail industry. He is responsible for leading, coaching and developing teams of up to 34 staff.
[29] Mr Cremona submitted that Mr Faella has already demonstrated his ability to engage effectively with these proceedings by preparing and filing a detailed witness statement, responding to allegations made against him and addressing factual and credibility issues without any suggestion of difficulty or confusion.
[30] Mr Cremona noted that he, himself, has represented himself throughout the proceedings, prepared multiple witness statements and submissions, complied with directions of the Commission and cross-referenced evidence and annexures without assistance. He considers that it is inconsistent and unfair to contend that Mr Faella requires external legal representation on the same basis.
[31] Mr Cremona submitted that granting leave for the Employer and Mr Faella to be legally represented would create a significant procedural imbalance contrary to the objects of Part 6-4B of the Act.
[32] As to the exercise of discretion if the threshold requirements are met, Mr Cremona submitted that relevant considerations are:
[33] The factual matrix before the Commission in this matter is not a simple one, nor is the issue of credibility of the witnesses. Mr Cremona submitted that he was not seconded to the Employer's Helensvale store as put by the Employer and Mr Faella, but rather, relocated to the store. He has now been returned to perform work for the Employer at the Pimpama store. This is quite a significant matter to be determined.
[34] In my experience with stop bullying applications before me, many applicants tend to be overly focussed on demonstrating that they have been bullied in the past, and less focussed on the risk of future bullying. Where solutions are proposed by parties other than the applicant, it is my experience that an applicant can become fixated on seeking a declaration that they have been bullied in the past and limit their focus on the consideration at s.789FF(i)(b)(ii); that is, is there a risk that Mr Cremona will continue to be bullied at work by Mr Faella?
[35] The undertakings offered by the Employer and Mr Faella deal directly with the Commission's considerations at s.789FF(i)(b)(ii), and I expect there will be a substantial amount of time during the hearing spent on cross-examination on the likelihood of future bullying if the undertakings are capable of being adopted, adopted and whether Mr Cremona accepts that they can be given and are practical. Further, the Commission would need to be satisfied on the credibility of Mr Faella in meeting his obligations in respect of the undertakings.
[36] I am satisfied that these are complex matters and granting permission for the Employer and Mr Faella to be represented at the hearing will enable the matter to be dealt with more efficiently.
[37] For the above reasons, I choose to exercise my discretion to grant permission for the Employer and Mr Faella to be represented at the hearing pursuant to s.596(2)(a).
[38] Having determined the matter in respect of s.596(2)(a), it is not necessary for the matter to be determined in respect of s.596(2)(b). Had it been necessary to do so, I would have granted permission for Mr Faella to be represented because it would be unfair not to allow Mr Faella to be represented because I am satisfied that he is unable to represent himself effectively.
[39] If Mr Cremona does not ask Mr Faella questions in cross-examination in respect of Mr Faella's messages to colleagues on Microsoft Teams, then I will. It is very possible there might then be detailed re-examination of Mr Faella by his legal representative. Given what appears to be the importance of this matter in my mind at this stage, I consider that Mr Faella would be at an appreciable disadvantage if he was asked multiple questions in cross-examination on this issue, together with any questions I might have, and then, without representation, give any further evidence he wished. I am satisfied that he would be unable to represent himself effectively and I would exercise my discretion to permit him to be legally represented.
[40] If it were necessary to determine whether leave should be granted to the Employer pursuant to s.596(2)(b), having determined that I would have granted leave to Mr Faella, I too would have granted leave for the Employer to be represented. Whilst I accept that the Employer is not a small business and employs legally qualified employees, I am satisfied that the Employer would be unable to represent itself effectively. There appears to be a distinct lack of arbitration experience to deal with a reasonably complicated matter, one which Mr Cremona seems to have undertaken a considerable amount of research and devoted time and effort into making coherent and detailed submissions.
For the reasons set out above, I exercise my discretion under s.596(2)(a) of the Act to grant permission for the Employer and Mr Faella to be represented by a lawyer. The Commission will, of course, afford to Mr Cremona all necessary and appropriate assistance at the hearing to ensure procedural fairness to him. There will be no disadvantage to Mr Cremona, and if at any time Mr Cremona has a question relevant to issues or processes before the Commission, this will be accommodated.
[1] CEPU & Ors v Northern SEQ [2016] FWC 4736 at [13]- [14].
[2] Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender [2021] FWCFB 268 at [48].
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