Login
‘Non-practising’ lawyer found to be ‘detriment’ in unfair dismissal case
The involvement of a lawyer in an unfair dismissal matter was found to be a “detriment” to a personal care assistant, despite his insistence he was not practising as a legal practitioner.
Naomi Neilson
Deputy president Abbey Beaumont of the Fair Work Commission said the “confounding issue” in an unfair dismissal case involving a personal care assistant was Dulith Sangakkara’s insistence he was not a legal representative or paid agent at the time he provided advice.
Under the Fair Work Act 2009, an applicant can be “blameless” when a representative or union is responsible for the delay.
The applicant is required to provide evidence they gave appropriate and timely instructions, as the assistant did with Sangakkara.
In the context of this, Sangakkara told Fair Work he would take “full responsibility” for the filing delay, having advised the assistant to take other steps with regulatory bodies first.
At the time Sangakkara assisted the assistant, he held a practising certificate and was employed with a law practice. However, the commission later learnt his employment had ceased.
According to the Legal Practice Board of Western Australia, Sangakkara currently holds a certificate and is an employed lawyer.
Sangakkara still insisted he helped the assistant as an “employee support person” and gave evidence he often works with people in the community where possible on a pro bono basis.
Beaumont found Sangakkara did not provide the assistant with general legal information, instead advising her to the “legal recourse she may pursue and then prepared correspondence” on her behalf.
This included letters to the Aged Care Quality and Safety Commission and the Australian Health Practitioner Regulation Authority, both of which refused to pursue the matter further.
Further, a statutory declaration was witnessed by Sangakkara, who also referred to himself as a “legal practitioner”.
“Although Sangakkara submitted he was not a practising lawyer whilst assisting the applicant, given all the circumstances so described, I consider this is a case where representative error has contributed to the period of delay,” Beaumont said.
On the whole, Sangakkara’s involvement in the matter – and particularly his advice to pursue other matters before turning to the Fair Work Commission – was a “detriment” to the assistant.
“Because of the reasons detailed in this decision, particularly Sangakkara’s involvement in advising the applicant, I consider it fair and equitable that an extension of time should be granted,” she said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
