by Alex Millman and Troy Wild, NRA Legal

Gregory Peck as Atticus Finch in the 1962 classic, To Kill a Mockingbird (Universal Pictures)

As a business, there is a great temptation that when faced with litigation to stick with what you know. Doubtless you will have engaged external lawyers before. Maybe they helped get the lease of your shop up and running, maybe they advised on your corporate structure, but you will likely have someone who is your first port of call for any legal issue you face.

There’s also a common perception that the more you pay for legal representation, the better the result. And if you’re successful, your legal costs will be paid by the other party – right?

However, the Fair Work Commission has made it clear that your choice of lawyer may come back to bite you.

In Portelli v Baxter Healthcare Pty Ltd, Commissioner Johns dismissed the employer’s application to have their costs paid by their former employee.

In doing so, the Commissioner observed that even if he had ordered in favour of the employer, it was unlikely that he would have awarded full costs because the employer chose the “Rolls Royce service” provided by HWL Ebsworth.

The Commissioner remarked that “it is doubtful that all the costs charged would survive a party-party costs assessment as to what was truly necessary and reasonable in a matter such as this”.

As far as the Fair Work Commission is concerned, bigger or more expensive law firms may simply be ‘unnecessary’. The emphasis on ‘necessary’ and ‘reasonable’ also means that the Commission is unlikely to favour a law firm that wasted time because it was dealing with an unfamiliar area of law.

Since the Fair Work Commission presumes that each side pays their own legal costs, getting the other side to pay is an uphill battle from the very start.

Employers need to be careful that their choice of law firm doesn’t work against them, even if the Commission rules in their favour.

The NRA Legal Team specialises in employment law, with decades of experience representing retailers large and small, and all NRA members receive heavily subsidised rates as part of their membership. To discuss how NRA Legal can assist you with any matter before the Fair Work Commission, call our workplace advisors on 1800 RETAIL (1800 738 245).