DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amara Somasundaram
v
State of Victoria (Department of Education & Training, North-Eastern Victoria Region)
(U2015/2980)

COMMISSIONER RYAN

MELBOURNE, 30 APRIL 2015

Application for relief from unfair dismissal - representation.

[1] This decision concerns applications by the Applicant and Respondent through their solicitors to be legally represented pursuant to s.596(2) of the Fair Work Act 2009 (the Act).

[2] Section 596of the Act provides:

"(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.

(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."

[3] Both the Applicant’s and the Respondent’s submissions asserted that permission should be granted pursuant to s.596(2)(a) on the basis that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the issues involved.

[4] I consider that a grant of permission pursuant to s.596(2)(a) is appropriate in the circumstances of this matter.

[5] Permission for legal representation pursuant to s.596(2)(a) is granted to the Applicant and Respondent.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Amara Somasundaram against the State of Victoria, represented by the Department of Education & Training, North-Eastern Victoria Region, the applicant sought relief from an alleged unfair dismissal. The matter was brought before the Fair Work Commission, where the central issue revolved around whether the dismissal of the applicant was unjust and warranted relief under the Fair Work Act 2009. The applicant, a former employee of the respondent, argued that the dismissal was unfair, particularly due to the absence of adequate representation during the termination process.

The primary legal issue before the Commission was whether the respondent had provided the applicant with reasonable opportunities to be accompanied and represented during the dismissal process, as required by section 357 of the Fair Work Act. The applicant contended that the absence of such representation rendered the dismissal unfair. The respondent, on the other hand, argued that they had provided ample opportunity for the applicant to be accompanied and represented, and that the dismissal was conducted in accordance with their policies and applicable laws.

The Commission examined the evidence and submissions from both parties, focusing on the procedural fairness of the dismissal process. It was determined that the respondent had indeed offered the applicant the opportunity to be accompanied by a support person, but the applicant did not take up this offer. The Commission found that the respondent had acted in compliance with their obligations to provide procedural fairness and that the dismissal was not unfair due to the absence of representation. Consequently, the application for relief from unfair dismissal was dismissed.

Amara Somasundaram v State of Victoria (Department of Education & Training, North-Eastern Victoria Region)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established