Fair Work Commissioner Leigh Johns says the transition to online hearings has been so successful that they will continue to be his “default procedure” and “new normal”.
Speaking at an NSW IR Society webinar this week, Commissioner Johns said “There is no doubt in my mind that online hearings satisfy the requirement of open justice,” noting “any interested citizen can attend via an electronic platform, computer, or smart phone” and high-profile cases can be livestreamed.
While the question of procedural fairness “requires deeper consideration”, he said a “fair hearing does not need to be a perfect hearing” but must avoid “practical injustice”.
As well as avoiding delays, Commissioner Johns said online hearings let him better see witnesses’ facial expressions, are less intimidating for self-represented parties, more suitable for vulnerable witnesses, reduce legal fees, and are more convenient, particularly for small businesses that might need to close their doors so they can travel to a hearing.
“It is my experience that no party, who has had their matter dealt with online in the past 19 months, feels that the experience was any less real,” he said, with no requests to adjourn a matter until it can he heard in person and no complaints that parties did not have their day in court because it was online.
Nor has he sensed that parties or witnesses no longer appreciate the importance of an FWC hearing because it is online.
Commissioner Johns, a member of the tribunal since early 2013, said when appearing on the virtual bench, he still wears a bowtie, uses the standard hearing room coat-of-arms as a backdrop “as a symbol of state authority”, and he expects participants to dress in court-appropriate attire.
He encourages parties and representatives to have neutral backdrops and does “not need to be distracted by what books a barrister has on their bookshelf in their home library”.
But if a “little more informality has crept in”, Commissioner Johns said it would “not be such a bad thing to humanise the legal process and make it less scary and, thus, more accessible”.