Fair Work Commission to grant pro bono legal services for SMEs in unfair dismissal cases

The Fair Work Commission has now granted the possibility of allowing both applicants and businesses in unfair dismissal claims to access free legal services, with the aim of helping self-represented parties.

In a new initiative announced by the commission, a pilot pro bono legal scheme to provide independent legal advice to self-represented employees or employers involved in unfair dismissal cases is being trialled in Victoria.

The pilot is also expected to be expanded to New South Wales next month.

Justice Iain Ross, who launched the Fair Work Commissions Future Directions strategy, said in a statement there are increasing numbers of self-represented applicants appearing before the commission.

“The parties to individual disputes are often unfamiliar with the commission’s procedures and the relevant legislative provisions. We have an obligation to explain these matters to self-represented parties,” he said.

Employment and industrial relations law expert Peter Vitale told SmartCompany it will “to some extent” be a positive move.

“We’re finding in a lot of cases self-represented litigants commence their claims and then abandon them, which consumes the resources of the employers and the commission.”

“Self-represented litigants almost always get a hearing that is longer than usual,” he says.

Vitale says through the pro bono legal scheme, some people who pursue claims without proper legal knowledge will also be able to be advised their case does not have significant merit.

The scheme, he says, will be of benefit to people with “genuine cases”, but a pro bono service isn’t the answer for every case.

“There is no doubt for those people who can’t afford representation and have a genuine case this will be very helpful in streamlining the process and making it less stressful.”

“But often you find people who are self-represented have either sought advice and been told they don’t have much of a claim or they don’t want to go to lawyers in the first place,” he says.

Council of Small Businesses of Australia executive director Peter Strong said in a statement the announcement is positive because it treats employers and employees equally.

“For many years we have argued that a small business employer should receive the same treatment and support as an employee; after all, in the world of small business we have no paymasters and we rarely have much spare cash to pay for legal advice.”

“This announcement from the FWC acknowledges that we should be given the same rights and conditions as a complainant,” he says.

Strong says COSBOA has been in consultation with the commission to help small businesses understand the “technical processes” involved in unfair dismissal cases.

“In the end if a person is unfairly dismissed they should be able to seek support and if a person is wrongly accused of unfair dismissal they should also be able to seek similar support.

“Now that there is equity in support we can concentrate on other issues such as the confusing award system,” he says.

The pro bono initiative is one of three aimed at improving access to justice for self-represented parties.

The other initiatives include the creation of the Unfair Dismissal Benchbook, containing clear summaries of key principles in unfair dismissal laws, and the introduction of an Appeals Practice Note, which streamlines the appeals process and gives an option for an appeal without the need for a hearing.

Vitale says these options will be good for self-represented parties and practitioners alike.

“I think the benchbook will be useful for practitioners who act for both employers and employees. They can use it to indicate to their clients the principles that the commission itself thinks are relevant.”

“In terms of appeals, it seems to be a measure aimed at reducing the burden of the tribunal. A lot of appeals are reasonably straightforward,” he says.