1 Fair Work Act 2009 s.394—Unfair dismissal Mark Raymond Orchard v Aboriginal Family Legal Service Queensland (U2026/5997) COMMISSIONER HUNT BRISBANE, 2 JULY 2026 Application for an unfair dismissal remedy – objection to application for legal representation – leave granted. [1] This decision relates to an application filed by Mr Mark Raymond Orchard pursuant to section 394 of the Fair Work Act 2009 (the Act). Mr Orchard was dismissed in his employment as a Principal Legal Officer with the Aboriginal Family Legal Service Queensland (the Respondent) and alleges that his dismissal was harsh, unjust or unreasonable. [2] The matter is listed for hearing before me in-person on 10 and 11 August 2026. The Respondent has made an application to be represented pursuant to s.596 of the Act by Mr Richard Diqer of Counsel, briefed by Clifford Gouldson Lawyers. [3] Mr Orchard is a practising lawyer. He opposes leave being granted to the Respondent to be represented. [4] This decision only relates to the matter of legal representation. Legislation [5] The relevant provisions of the Act are set out in s.596(1) and (2): “596 Representation by lawyers and paid agents (1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC. [2026] FWC 2472 DECISION [2026] FWC 2472 2 (2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if: (a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or (b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or (c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter. …” [6] The Fair Work Commission (the Commission) only needs to find that one of the sub- sections above is satisfied to exercise its discretion to grant permission for a party to be represented. The satisfaction of one of these conditions is not determinative but enlivens the Commission’s discretion as to whether permission to be represented should be granted.1 Reasons for dismissal [7] Mr Orchard was dismissed by the Respondent because the Respondent asserts that he engaged in the following conduct: • Acting contrary to the Respondent’s scope of service pursuant to its Service Agreement with the Department of Justice by representing a person alleged to have committed a crime of alleged indecent dealing of a child under the age of 16; • Failing to comply with time recording requirements; • Performing work for another law firm, namely Clewett Lawyers, during contracted hours with the Respondent; and • Approving a WorkCover claim without authority to do so. Respondent’s Submissions [8] The Respondent seeks leave to be represented by a lawyer pursuant to s.596(2)(a) and (b) of the Act. [9] The Respondent noted that the Commission will be required to examine the precise scope of the funding agreement that the Respondent has entered into with the Department of Justice. It is asserted that the Respondent is required to provide culturally appropriate, trauma- informed services and assistance to victims and survivors of family violence and sexual assault. The Respondent considers that the Commission will be required to consider if Mr Orchard’s conduct in representing the person charged could have put the funding of the Respondent at risk. [10] Further, where Mr Orchard is either employed or is a Partner of Clewett Lawyers, an examination is required as to whether he was performing work for Clewett Lawyers at the time [2026] FWC 2472 3 he was required to perform work for the Respondent. The Respondent submitted that this would be a complex issue. [11] In respect of the WorkCover claim, it is submitted that examination will be required as to communication Mr Orchard had with an acting CEO of the Respondent and the Respondent’s Board. [12] Having regard to whether the Respondent is unable to represent itself, the Respondent noted that while the Respondent provides legal services, it specialises solely in family law and does not engage in employment matters. Mr Rowe, Acting CEO, and Ms Glenda Humes, Chair of Board of Directors, have no prior experience or expertise in employment law and are not practising solicitors. Mr Orchard’s Submissions [13] Mr Orchard takes issue that there is any complexity attached to the matter which would warrant the engagement of solicitors and/or Counsel. [14] He considers that the parties have already filed substantial evidence and submissions. He notes that Ms Humes holds a law degree and the Respondent has had the benefit of legal advice from private solicitors funded to-date by the Respondent. [15] Mr Orchard submitted that because the Respondent can avail itself of legal advice in the preparation of its defence to the claim prior to the hearing, the engagement of legal practitioners to conduct the hearing would not enable the matter to be dealt with more efficiently. Mr Orchard submitted that involvement of Counsel would likely serve to unnecessarily protract the conduct of the hearing. [16] Mr Orchard conceded that the Respondent has no specialist human resources staff experienced in workplace relations advocacy which he says speaks to the high turnover of staff. [17] Mr Orchard submitted that granting the Respondent leave to be represented would result in unfairness to him as he is not a partner at Clewett Lawyers, but rather a ‘mere’ employee. Consideration [18] The decision of Flick J in Warrell v Walton2 addresses the obligation to strike a balance between the objective of an informal determination process with equity and efficiency considerations depending on the circumstances of a particular matter: “[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The [2026] FWC 2472 4 constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”. [25] The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)...” [19] The decision to allow a party to be represented in a matter is discretionary; it is not automatic. The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case against the legislative tests.3 [20] When considering if a lawyer or paid agent representing a party would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, in my view, it requires a weighing-up exercise. The question is, in this case, would the lawyer enable the matter to be dealt with more efficiently, taking into account the complexity of the matter more than say, Ms Humes, whom I accept has no prior experience or expertise in employment and is not a practising solicitor. [21] Mr Orchard is a solicitor of more than 40 years’ experience. I accept that he is an employed solicitor and not a partner, despite the Clewett Lawyers webpage representing that Mr Orchard is a partner. [22] Having regard to s.596(2)(a), I consider that permitting the Respondent to be represented by a lawyer, given the four reasons for Mr Orchard’s dismissal would allow the hearing to be conducted more efficiently. I accept that the reasons for the dismissal are complex and may require detailed cross-examination of Mr Orchard, particularly in relation to his time and attendance between the Respondent’s premises and that of Clewett Lawyers which he says during the employment he may have moved between three to four times per day. [23] In respect to section 596(2)(b) of the Act, ‘effectively’ has been found to mean that4: “… the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.” [24] Having regard to Ms Humes’ lack of experience in employment law and not being a practising solicitor despite holding a law degree, I am satisfied that Ms Humes is unable to [2026] FWC 2472 5 represent the business in a manner that creates a ‘striking impression’ or is ‘powerful in effect’, particularly in relation to the cross-examination required of Mr Orchard. Conclusion [25] For the reasons set out above, I exercise my discretion under ss.596(2)(a) and (b) of the Act to grant permission for the Respondent to be legally represented. The Commission will, of course, afford to Mr Orchard all necessary and appropriate assistance at the hearing to ensure procedural fairness to him, noting he is a legally qualified lawyer of more than 40 years’ experience who presently holds a current practising certificate. There will be no disadvantage to Mr Orchard, and if at any time Mr Orchard has a question relevant to issues or processes before the Commission, this will be accommodated. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR811612 > 1 CEPU & Ors v Northern SEQ [2016] FWC 4736 at [13]-[14]. 2 [2013] FCA 291. 3 Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572Z. 4 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd (Project Aurora) [2012] FWA 2966 at [16].