There is a growing trend in the Fair Work Commission for employers to be refused representation by their external lawyer. For some HR practitioners who revel in the art of advocacy, this may be music to their ears. However, for those HR practitioners who rarely have a reason to be in the Commission or are afraid of public speaking, this can be daunting.
Essentially, the Commission wants to ensure that all the parties have a fair hearing. It is designed to operate informally and, as far as possible, in a non-adversarial manner.
It is against this backdrop that the Commission decides whether a party should be represented by a lawyer. It does this on a case-by-case basis, taking into account considerations of complexity, efficiency and fairness. It does not take into account the convenience or preference of the parties involved.
Any employer with an HR department or in-house general counsel should be aware that the Commission will likely want the HR department or in-house counsel to conduct the case. It is only for more complex matters where permission for an external lawyer to appear will be granted.
In light of this trend, it is critical for HR practitioners to have an understanding of the Commission, the legal process and the resources available to assist them to effectively advocate their case.
The McKenzie friend is your friend
One of these resources is the concept of a “McKenzie friend”, named after the eponymous case in the 1970s.
A McKenzie friend is a person who attends the hearing, sits beside the HR practitioner and assists them as needed. This may include taking notes, quietly making suggestions and giving advice. A McKenzie friend assists the HR practitioner to navigate their way through the Commission process and is there to watch, listen and guide, to ensure that the employer (through their HR representative) puts their best case forward.
There are limits though – a McKenzie friend is not a way of circumventing the Commission’s right to appear rules. They cannot put submissions, question a witness or make a challenge about rules of evidence.
Although the Commission is designed to be informal, there is always a lot riding on the outcome of any hearing. It could mean reinstatement in the case of unfair dismissal, or a substantial compensation payment to the employee. A McKenzie friend can give an HR practitioner confidence that all of the issues will be accurately covered. For an employer, it also gives confidence that their HR practitioner has all the necessary resources to properly put the employer’s position before the Commission.
There is a cliché that prior, proper, preparation prevents poor performance. When it comes to the Commission, even with the best preparation, a hearing may take many twists and turns. A witness may say something new or different. There is also a need to make sure all of the evidence is put before the Commission and to challenge the evidence of the opponent.
In this, the gentle art of persuasion and advocacy should not be forgotten. Skilled and experienced advocates with knowledge of the Fair Work Commission may add considerable value to an employer’s case. Even if the only role available is that of a McKenzie friend, it can still make all the difference.
HR practitioners should be aware that they have support options available to them. Be confident to ask for help and then know that you can stand before the Commission well prepared.
This article is an edited version. The full article was first published in the July 2015 issue of HRMonthly magazine as ‘A friend in need’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.