s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Permission for legal representation

• [1] Mr Kumar (Applicant) has made an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act). The matter is listed for hearing on 23 October 2025.

• [2] Initial directions in the matter issued on 11 August 2025 required that if either party sought to be represented in the matter, the party must apply for permission by filing a Form F53 by no later than 20 August 2025. No such application was made on or before that date.

• [3] On 6 October 2025, following two conciliations before another member of the Commission, a Form F53 was filed with the Commission on behalf of the Respondent and provided to the Applicant, to which the Applicant objected (via e-mail 14 October 2025) on grounds including non-compliance with the direction referred to above. On 17 October 2025 the Respondent's representative explained that they had not received instructions to act in the matter on or before 20 August 2025.

• [4] On 17 October 2025, the Respondent was requested to elaborate on its grounds for seeking permission for representation by close of business on Monday 20 October 2025, and the Applicant was asked to respond by close of business on Tuesday 21 October 2025. The parties were informed that I would advise of my decision in respect of representation on 22 October 2025.

• [5] The basis for seeking representation is outlined in the Respondent's grounds as arising under paragraphs (a) and (b) of subsection 596(2) of the Act. Insofar as the first is concerned, it is said that the matter could be dealt with more efficiently were the Respondent permitted to be legally represented. The potential efficiency gains were said to arise in relation to:
  • navigating technically complex evidence that is said to be material to ascertaining the hours the Applicant worked, in a context where the reason for the dismissal was based on the Respondent's view that there was a difference between the hours worked by the Applicant and the hours claimed by the Applicant to have been worked;
  • interrogating the above evidence with the degree of precision warranted in light of the seriousness of the allegations arsing; and
  • navigating the boundaries of relevance in the evidentiary material relied on by the Applicant.

• [6] The Respondent also raises an issue of legal complexity that could be dealt with more efficiently in that it has foreshadowed making an application for non-publication of certain material relating to its clients. The Respondent further submits that allowing it to be legally represented would not inject any unfairness into the proceeding.

• [7] The Applicant maintains his opposition to legal representation. Insofar as that response seeks to meet the complexity argument by reference to the merits of the Applicant's case and the effects the dismissal has had on him, they are not directly relevant to grounds the Respondent has advanced. The Applicant's main line of opposition to the complexity argument however are submissions directed to the limitations or utility of the evidence that the Respondent seeks to rely on. This rather confirms a genuine dispute of some complexity that could be more efficiently progressed with the assistance of the Respondent's representative.

• [8] I do not accept that the foreshadowed application for non-publication of particular evidence is necessarily complex, but there is insufficient material upon which to reach a firm conclusion on that issue.

• [9] I am satisfied that that allowing the Respondent to be legally represented as it seeks would enable the matter to be dealt with more efficiently for the reasons it has advanced relating to factual complexity. Whilst this is sufficient to enliven my discretion permit legal representation, it is not decisive of the issue.

• [10] In particular, the Applicant rightly points out that the Respondent did not comply with the Commission's directions in the timing of it seeking legal representation. This is a relevant matter to the exercise of the discretion. There is, prima facie, a reasonable argument that the nature of the case the Applicant sought to run shifted between the filing of the Application and the filing of his material. Had the Respondent acted immediately to file its application upon becoming aware of this, it still would have missed the date specified for applications for permission to represent (although it would have come in more than a month earlier than it actually did). On reflection, that date was set inappropriately by me as it proceeded the filing of the respective parties' cases.

• [11] The Applicant submits that it is "now too late" for him to secure a lawyer. I reject the notion that the prospect of the Respondent being legally represented necessitates that the Applicant must also be legally represented to ensure a fair hearing.[1] The submission also sits uncomfortably with the Applicant's insistence in holding the Respondent to the 20 August 2025 date: If that date was, on the Applicant's view, good enough for the Respondent, why was it not good enough for him?

• [12] The Applicant's opposition to the Respondent's application for representation is also made on a conditional basis, that is that his objection to representation would be withdrawn if the Respondent provides to him particular documents. The Respondent has indicated that it will search for and provide those documents prior to the hearing.

• [13] I have decided that I will grant permission to the Respondent to be legally represented at the hearing. I do so because:
  • I am satisfied that the matter will be dealt with more efficiently taking into account its complexity;
  • the time constraints I placed on the parties in relation to foreshadowing applications for permission were unreasonable in the circumstances;
  • I am satisfied that doing so is consistent with the matter proceeding fairly.

• [14] In the circumstances, it is not necessary for me to deal with the grounds the Respondent advances under paragraph (b) of subsection 596(2) of the Act.

• [15] If an issue arises in relation to the production of documents, I will deal with it distinctly at the commencement of the hearing.

[1] See Kaya v. Portier Pacific [2025] FWC 3036 at [5].

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