Peter Vassallo v Purus Health & Medical Tech Pty Ltd (Administrators Appointed) T/A Purus Health & Medical Technologies

[2015] FWC 4638

[2015] FWC 4638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Vassallo
v
Purus Health & Medical Tech Pty Ltd (Administrators Appointed) T/A Purus Health & Medical Technologies
(U2015/8128)

COMMISSIONER RYAN MELBOURNE, 8 JULY 2015

Application for relief from unfair dismissal - permission for respondent to be represented by lawyer - refused.

[1] The Respondent has sought permission to be represented by a lawyer or paid agent in the extension of time hearing listed for 10 July 2015.

[2] Directions were issued by the Commission on 30 June 2015 requiring the parties to file and serve their respective outline of submissions and any witness statements in relation to the extension of time application. Both parties have filed the material they each wish to rely on.

[3] The Applicant is self represented.

[4] The Respondent has through its legal representatives prepared detailed witness statements and submissions dealing with the extension of time matter.

[5] In support of its application for permission to be represented by a lawyer or paid agent the Respondent relies on both s.596(2)(a) and (b).

[6] In the present matter there is simply no complexity attached to the application for an extension of time. Whether or not there are exceptional circumstances which may give rise to the Commission exercising its discretion to grant an extension of time is a straightforward matter. The case law is clear and the facts relied on by each party are clearly identified in each parties respective material.

[7] Given the lack of complexity in relation to the application for an extension of time nothing arises under s.596(2)(a) which would warrant the Commission exercising its discretion to grant permission for the Respondent to be represented by a lawyer or paid agent.

[8] In relation to s.596(2)(b) the Respondent contends as follows:

● Purus does not have any in-house lawyers, nor any qualified or experienced human resources personnel or lawyers.

● Mr Hovey, Ms East and Mr O’Neill (being the representative of BPS Recovery) are neither lawyers nor persons with human resources expertise or experience in the FWC or workplace relations advocacy. They are therefore not in a position to advance and argue a legal point.
● Lawyers will still be required to attend the hearing to advise and assist the respondent at the respondent’s expense. The respondent and/or the Administrator will not be able to assist the FWC in respect of the jurisdictional issues to be determined, which exposes the Respondent to unfairness given its financial circumstances.

[9] No evidence detailing the contended unfairness was put to the Commission.

[10] The Commission is not satisfied that it would be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself effectively.

[11] The Respondent’s application for permission to be represented by a lawyer or paid agent is refused.

[12] Having said that there is no restriction on the Respondent having its lawyer present at the hearing so that the Respondent can seek advice during the hearing. A refusal to grant permission to the Respondent to be represented by a lawyer or paid agent only goes to the issue of representation at the hearing and does nothing to limit the Respondent’s access to legal advice.

COMMISSIONER

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