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Samarasekera v Charters Towers Regional Council[2019] QIRC 31

Samarasekera v Charters Towers Regional Council[2019] QIRC 31

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Samarasekera v Charters Towers Regional Council [2019] QIRC 031

PARTIES:

Samarasekera, Carol Ajith

(Applicant)

v

Charters Towers Regional Council

(Respondent)

CASE NO:

TD/2018/121

PROCEEDING:

Application in an existing proceeding regarding legal representation

DELIVERED ON:

11 February 2019

HEARING DATES:

16 January 2019

23 January 2019 (Respondent's Submissions)

6 February 2019 (Applicant's Submissions)

MEMBER:

HEARD AT:

Thompson IC

Brisbane

ORDER:

Legal representation for the respondent is granted

CATCHWORDS:

INDUSTRIAL LAW – Legal Representation - Interpretation - Leave granted

LEGISLATION:

Industrial Relations Act 2016, s 317, s 530

CASES:

Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079

APPEARANCES:

Mr C. Samarasekera, Applicant Ms M. Morton of Wilson Ryan Grose Lawyers for the Respondent

Reasons for Decision

Background

  1. [1]
    On 8 November 2018 Carol Ajith Samarasekera (applicant) filed with the Industrial Registrar an application for reinstatement following the decision of the Charters Towers Regional Council (respondent) to terminate his employment effective from 19 October 2018.
  1. [2]
    The applicant on 8 November 2018 lodged with the Industrial Registrar a Form 34 - Lawyers notice of address for service which advised that Connolly Suthers Lawyers had been engaged to act on the applicant's behalf in proceedings.
  1. [3]
    The respondent on 16 November 2018 lodged with the Industrial Registrar a Form 34 - Lawyers notice of address for service which advised that Wilson Ryan Grose Lawyers had been engaged to act on the respondent's behalf in the proceedings.
  1. [4]
    A conciliation conference was held on 30 November 2018 before Deputy President Bloomfield in respect of the application for reinstatement.
  1. [5]
    The applicant on 11 December 2018 lodged with the Industrial Registrar a Form 35 - Notice of withdrawal of appointment of lawyer or agent which advised that Connolly Suthers Lawyers were no longer acting for the applicant.

Applicant's application in existing proceedings

  1. [6]
    The applicant on 18 December 2018 lodged with the Industrial Registrar a Form 4 - Application in existing proceedings in which he wished to exercise his rights set out at s 530(1)(a)(i) of the Industrial Relations Act 2016 (IR Act) in that he did not consent to the respondent being legally represented.
  1. [7]
    The applicant was aware that the Queensland Industrial Relations Commission (Commission) had the power to allow the respondent to be legally represented however as this matter was not complex and in the interests of equity the Commission ought not exercise its discretion.

Respondent's application in existing proceedings

  1. [8]
    On 23 January 2019 the respondent lodged with the Industrial Registrar a Form 4 - Application in existing proceedings in which leave was sought pursuant to s 530 of the Commission to be represented by a lawyer in the proceeding.

Hearing

  1. [9]
    A hearing was held before the Commission (as constituted) on Wednesday 16 January 2019 for the purposes of a Mention where it was concluded that each party would provide written submissions in respect of the application for the respondent to be legally represented in ongoing proceedings.
  1. [10]
    On 16 January 2019 a Further Directions Order was issued that required:
  1. That the Respondent supply to the Applicant, and file in the Industrial Registry, a written submission in response to the Application in existing proceedings filed by the Applicant (in relation to an objection to legal representation), by 4.00 pm on Wednesday 23 January 2019.
  1. That the Applicant supply to the Respondent, and file in the Industrial Registry, a written submission in reply, by 4.00 pm on Wednesday 6 February 2019.

Submissions

Respondent

  1. [11]
    At the time the applicant filed the application for reinstatement he was represented by Connolly Suthers Lawyers and when the respondent filed a response to the reinstatement application it was filed by Wilson Ryan Grose Lawyers.
  1. [12]
    The applicant was suspended from his employment pending an investigation on 7 February 2018 and following a lengthy process conducted by the respondent with respect to the investigation, the applicant was issued correspondence (dated 17 September 2018) under the signature of Aaron Johansson (Johansson) Chief Executive Officer of the respondent which identified the applicant's conduct that was unacceptable and of four allegations to which the applicant was required to provide a response.
  1. [13]
    The response to the allegations was provided to the respondent by Connolly Suthers Lawyers on behalf of the applicant and did not vary from or alter the responses previously provided on 16 May 2018.
  1. [14]
    The process continued to run its course in the following terms:
  • 12 October 2018 the applicant was required to show cause why his employment should not be terminated;
  • 15 October 2018 correspondence forwarded by Connolly Suthers Lawyers in response to the respondent's correspondence 12 October 2018; and
  • 18 October 2018 correspondence was forwarded from Wilson Ryan Grose Lawyers to the applicant which enclosed a letter of termination issued by the respondent.
  1. [15]
    Documentation was attached to the submission to establish that the matter was complex given that the allegations which were made by the respondent against the applicant would involve the presentation of expert evidence for the purposes of establishing:
  • allegations regarding email activity as set out in correspondence (dated 17 September 2018);
  • dating website activity on both Oasis and Zoosk;
  • dating website activity on the website Blackbook; and
  • dating website activity on other websites.
  1. [16]
    Additionally, there was some further complexity with respect to the relevant policies and directives and disputes regarding the interpretation of the following:
  • CTRC Administrative Directive D0094/COR - Internet, Email and Computer Use, effective 11 June 2014;
  • CTRC Statutory Policy S0047 - Code of Conduct, effective 5 May 2013; and
  • CTRC Administrative Directive ADMIN D00080 - Code of Conduct, effective 9 May 2013.

A number of documents which may be relevant to proceedings were documents filed on behalf of both the applicant and the respondent.

  1. [17]
    The Industrial Relations Coordinator employed by the respondent, Vicki Gardner (Gardner) had managed the dismissal of the applicant and held a Certificate IV in Human Resources and a Diploma of Management but had no experience or expertise in unfair dismissal claims before the Commission and it would unfair to not allow the respondent to be represented as they do not have the expertise to represent themselves.

Applicant

  1. [18]
    The applicant provided written submissions (dated 6 February 2019) opposing the respondent's Form 4 - Application to be legally represented pursuant to s 530 of the Act in the reinstatement application.
  1. [19]
    In terms of s 530 of the Act a fundamental principle underpinning the section is that of equity with the primary intention of s 530 being that parties ought to be unrepresented except by consent.  The exceptions allow for representation mainly where equity demands and in this case equity would not be served if the respondent was granted leave to be legally represented when he could not afford legal representation.
  1. [20]
    The respondent had deliberately protracted the process to disadvantage the applicant and it was the case that the material presented by both parties was not complex.  The respondent had a specialist Human Resources Section structured to manage a very large organisation and based on ample correspondence exchanged in this matter the respondent had demonstrated its competence to pursue its agenda.

Reply to the respondent's submission

  1. [21]
    The intention of the Act was that parties ought to be unrepresented except by consent was implicit in the respondent's Form 4 - Application and if there was a right for the respondent to be legally represented there would not have been a need to make an application.
  1. [22]
    The allegation from the respondent that expert witnesses will be required to establish its case had not in his view been substantiated or supported by any detail, explanation or reasons.  Without any relevant information from the respondent it was impossible to provide an appropriate response.
  1. [23]
    The applicant conceded that the respondent had engaged one expert in the area of IT Forensics who had provided two reports plus a follow up report and it was the case that the respondent ought to have understood those findings and explanations to validly make the determinations that had already been made.  The Human Resource Section of the respondent, comprising of several staff was capable of examining the witnesses to clarify any matters, inconsistent evidence or evidence they have concerns about.  On the other hand, if the respondent did not understand the Ferrier Hodgson reports (IT reports) then their determinations would be illegitimate.  There was no need for legal representation to be granted.
  1. [24]
    The other material before the proceedings excluding the Ferrier Hodgson reports did not contain any complex legal argument to warrant legal representation being approved.
  1. [25]
    The applicant would be the only witness in his case before the Commission.
  1. [26]
    The documents listed by the respondent as relevant policies and directives and disputes in the proceedings were the subject of challenge in regards of not being complex and were written in ordinary English which enabled the respondent's staff to understand the policies.  In relation to the Code of Conduct that was "owned" by the previous Human Resources Manager and issues including interpretation of documents would have been passed on to the Senior Human Resources Officer on the incumbent's departure.  Therefore, the respondent's Human Resources section would be sufficiently competent to deal with any matters or questions without recourse to legal representation.
  1. [27]
    The respondent made the "confession" that Gardner had been assigned the task to "manage his dismissal" which confirms a pre-meditated and illegitimate agenda to "get rid" of the applicant at all costs.  Gardner had not operated alone as she had been acting under the direction of her supervisor and other senior management.  The dispute is based on fact with the principle issue being fairness.
  1. [28]
    In February 2018 the respondent underwent a comprehensive and costly organisation review which would have included the composition of the Human Resources section and its set of competencies also examined in the review.  The Human Resources section and senior management were adequately competent to deal with this matter at the hearing and using Gardner's lack of experience and competence to substantiate the application for legal representation lacked credibility.
  1. [29]
    The applicant does not consent to the application.

Conclusion

  1. [30]
    The substantive application filed on 8 November 2018 sought reinstatement of the applicant on the basis that the termination of the employment had been harsh, unjust and unreasonable.
  1. [31]
    In the correspondence that effected the termination of the applicant's employment (dated 18 October 2018) the Chief Executive Officer had informed that his conduct had been unacceptable and there were reasonable grounds to support the findings which related to serious breaches of the respondent's policies.  The Chief Executive Officer had not accepted that the respondent had engaged in a pre-determined course of action nor had he accepted explanations given by the applicant in respect of the alleged conduct.

Legislation

  1. [32]
    The legislation relevant to proceedings in respect of legal representation in matters before the Commission such as the substantive application is that of:

530 Legal representation

  1. (1)
    A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if -

  1. (d)
    for other proceedings before the commission, other than the full bench -
  1. (i)
    all parties consent; or
  1. (ii)
    for a proceeding relating to a matter under a relevant provision - the commission gives leave; or

  1. (4)
    An industrial tribunal may give leave under subsection (1) only if -
  1. (a)
    it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  2. (b)
    it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or
  3. (c)
    it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.

Examples of when it may be unfair not to allow a party or person to be represented by a lawyer—

 a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy

 a person is from a non-English speaking background or has difficulty reading or writing

  1. (7)
    In this section -

industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.

proceedings means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar.

relevant provision, for a proceeding before the commission other than the full bench, means -

  1. (a)
    chapter 8; or
  1. (b)
    section 471; or
  1. (c)
    chapter 12, part 2 or 16.

Previous Legal Representation

  1. [33]
    It is a matter of fact that the applicant and the respondent both lodged with the Industrial Registrar Form 34 - Lawyers notice of address in the initial stages of the proceedings which had the effect of advising that each party had engaged lawyers to act for them in the proceedings.
  1. [34]
    It is also a matter of undisputed fact that on 18 December 2018 the applicant lodged with the Industrial Registrar a Form 35 - Notice of withdrawal of appointment of lawyer or agency which ended the legal representation on the applicant's behalf.
  1. [35]
    Technically, unlike the applicant, the respondent remained legally represented in the proceedings and that representation, is now subject to challenge in respect of the Application in Existing Proceedings.

Application of s 530 of the Act

  1. [36]
    The applicant pursuant to s 530(1)(d) of the Act in exercising the right to withhold consent meant that for legal representation to be granted it required the Commission to grant leave.  In consideration of granting such leave it must first be established that the proceedings related to a matter under a "relevant provision" which at s 530(7)(a) of the Act defines that a proceeding under "chapter 8" of the act is a "relevant provision.
  1. [37]
    Chapter 8, Division 2, s 317 of the Act allows for an application for reinstatement to be made to the Commission following an employee's dismissal and consequently s 530(1)(d)(ii) of the Act is enlivened for the purposes of determining whether leave for legal representation in the proceeding is granted or otherwise.
  1. [38]
    In the determination of an application to grant leave for legal representation the Commission may grant such leave only if at least one of the following circumstances are met pursuant to s 530(4)(a), (b) or (c) of the Act:
  1. (a)
    it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  1. (b)
    it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or
  1. (c)
    it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.

Complexity of the matter

  1. [39]
    The respondent in seeking leave to be legally represented relied principally on the complexity of the matter as the ground upon which such leave ought to be granted.  The submission had attached documentation that was said to establish that legal representation was necessary particularly in respect of expert evidence around internet activity which had been the subject of investigation undertaken by Ferrier Hodgson.  Further the requirement to interpret a number of the respondent's policies and directives relevant to the termination of the applicant's employment supported their application.
  1. [40]
    The applicant in submissions refuted all claims made by the respondent with regard to the alleged complexity of the matter including references to the engagement of the IT Forensic Analyst (Ferrier Hodgson) and the subsequent three reports furnished at the conclusion of the investigation.  The applicant presented argument that the respondent was able to be competently represented by internal specialist staff from the Human Resources section of the respondent.
  1. [41]
    The considerations by the Commission of the application for legal representation is not confined solely to the content of the respondent and the applicant's submissions but also includes the full content of the file in the substantive proceedings which included:
  • correspondence on behalf of the applicant forwarded to the respondent by Connolly Suthers Lawyers (dated 9 July 2018)(of some 11 pages) which included the following reference to an interview conducted by the representative of Ashdale:

Our client was "blind-sided" at the Interview.

During the interview the representative of Ashdale presented our client with various documents, information and reports, which included the following (collectively referred to as the "evidence"):-

  • Report from Ferrier Hodgson dated 9 March 2018.
  • Report from Ferrier Hodgson dated 12 April 2018.
  • Spreadsheet containing dongle usage.
  • Spreadsheet indicating total volume of dongle usage (54 GB in a 10-month period).
  • Spreadsheet "Notes for Interviewer" containing alleged content of internet access.
  • 5 emails from or to AS Council email address.
  • Cover page of an alleged Public Interest Disclosure report found in the laptop.
  • Spreadsheet showing mobile and dongle cost for AS over a period of 10 months.
  • Mobile telephone costs.
  • Dongle costs.
  • Email from IT support officer dated Nov 2016 regarding excess cost of dongle usage for Nov 2016.
  • information request from the applicant to the respondent (undated)(of some seven pages) seeking information to assist in understanding the allegations against the applicant;
  • Ferrier Hodgson reports;
  • Ashdale transcript of interview with the applicant on 17 May 2018 of some 58 pages; and
  • the Directives.
  1. [42]
    The level of documentation detailed by the applicant's own legal representatives identified the matter as having a significant degree of complexity and when considered with a range of other documentation previously referred to, I am satisfied that the proceedings will be complex in nature.

Prejudice to the applicant if legal representation application was granted

  1. [43]
    The applicant submitted that equity would be compromised if the respondent was granted leave to be legally represented in the proceedings particularly in circumstances where he was unable to "afford legal representation because the Respondent [Council] deliberately protracted the process to disadvantage me".
  1. [44]
    In considering whether the applicant would be prejudiced by the granting of leave to the respondent to be legally represented, I note the comments of Neate IC in the matter of Wanninayake v State of Queensland (Department of Natural Resources and Mines)[1] where on this issue he stated:

To the extent that a self-represented party considers it likely that they will be at some disadvantage in proceedings where the other party is, or parties are, represented by lawyers, the self-represented party should proceed on the basis that the Commission will attempt to ensure that the proceedings are conducted fairly within the time allotted for the hearing.

  1. [45]
    I fully concur with the sentiments expressed by Neat IC and see no reason as to why they would not be applicable in the current situation.

Finding

  1. [46]
    On having considered the material before me, I have formed the view that the granting of leave to the respondent to be legally represented would allow for the proceedings to be dealt with more efficiently having regard for the complexity of the matter.
  1. [47]
    The application by the respondent to be legally represented in the substantive application is granted.
  1. [48]
    I so order.

Footnotes

[1] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079

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Editorial Notes

  • Published Case Name:

    Samarasekera v Charters Towers Regional Council

  • Shortened Case Name:

    Samarasekera v Charters Towers Regional Council

  • MNC:

    [2019] QIRC 31

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    11 Feb 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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