Porche v State of Queensland (Department of Education)
[2020] QIRC 204
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- Unreported Judgment
- Porche v State of Queensland (Department of Education)[2020] QIRC 204
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Porche v State of Queensland (Department of Education)[2020] QIRC 204
Porche v State of Queensland (Department of Education)[2020] QIRC 204
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Porche v State of Queensland (Department of Education) [2020] QIRC 204 |
PARTIES: | Porche, Leticia Jane (Applicant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | TD/2019/50 |
PROCEEDING: | Reinstatement |
DELIVERED ON: | 27 November 2020 |
MEMBER: | Industrial Commissioner Power |
ORDER: | Leave is granted for the Respondent to be represented by a lawyer |
CATCHWORDS: | REINSTATEMENT – APPLICATION FOR LEGAL REPRESENTATION – Industrial Relations Act 2016 – Whether Respondent can be represented by a lawyer under s 530 of the Industrial Relations Act 2016 – Factors to be considered by the Commission in deciding whether to allow legal representation – Circumstances of the case – Leave granted to be legally represented |
LEGISLATION CASES: | Industrial Relations Act 2016, s 530 Le Pierres v Herzfeld Pty Ltd (2000)163 QGIG 124 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 |
Reasons for Decision
Background
- [1]On 19 June 2019 Ms Leticia Porche (the Applicant) filed an application for reinstatement. An initial conference was held on 5 August 2019, however conciliation was unsuccessful, and the matter was allocated for hearing.
- [2]A Mention was held on 28 February 2020, after which the matter was placed in abeyance upon the Applicant's request. Following a request from the Applicant to progress the matter, a further Mention was listed on 18 August 2020.
- [3]On 13 October 2020 the State of Queensland (Department of Education) (the Respondent) made an application seeking an Order, pursuant to s 530 of the Industrial Relations Act 2016 (the Act), for leave to be legally represented by Counsel in the proceedings and that this application be determined on the papers.
- [4]Directions were issued requiring parties to file submissions on the question of legal representation. Both parties consented to this matter being determined on the papers.
Statutory framework
- [5]Section 530 of the Industrial Relations Act 2016 (Qld) ('the Act') sets out the circumstances where a party to the proceedings may be legally represented:
530 Legal representation
- (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—
...
(d) for other proceedings before the commission, other than the full bench—
- (i)all parties consent; or
- (ii)for a proceeding relating to a matter under a relevant provision—the commission gives leave......
- (4)An industrial tribunal may give leave under subsection (1) only if—
- (a)it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
- (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
- (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.
Applicant's submissions
- [6]The Applicant advised that she does not consent to the Respondent being represented by a lawyer in this matter. The Applicant's submissions are summarised as follows-
- Leave should not be granted as the Applicant does not have legal representation;
- if the Applicant cannot be represented by a lawyer the process is not fair and equitable to both parties;
- the complexity is not such that it will enable the proceedings to be dealt with more efficiently if the Department is represented by a lawyer;
- the Applicant does not intend to subpoena many witnesses as she cannot afford to do so;
- the nature of the dispute is more of a human resources nature than a legal one and is well within the expertise of the human resources officers in the Department;
- the relevant issues largely relate to the reasonableness of the performance management process and the show cause process;
- the Commission is likely to be able to deal with the issues in dispute rather than a lawyer; and
- the Applicant is on jobseeker whilst going through this process and does not have the income to argue this case fairly and equitably.
Respondent's submissions
- [7]The Respondent's submissions are summarised as follows –
- the Application raises a number of complex questions of fact and law and the assistance of Counsel would enable and assist the parties and the Commission to deal with the proceedings more efficiently;
- a detailed examination of the evidence of the parties will involve:
- –an examination of the actions of the Applicant and the Respondent over an approximate five-year period;
- –an examination of the reasons for the Respondent's actions and decisions to terminate the Applicant's employment;
- –examination-in-chief and reply of the Respondent's witnesses (approximately 12 witnesses); and
- –cross-examination of the Applicant.
- The matter is factually complex and detailed in that:
- –the issues raised in the Application concern facts and circumstances dating back to 2015;
- –the material in this matter is voluminous and concerns a very detailed informal and formal managing unsatisfactory performance process (MUP process);
- –the MUP processes were conducted with the Applicant was employed at two different schools;
- –the factual events were witnessed by staff at both schools along with staff in regional offices. The Respondent anticipates calling approximately 12 witnesses in support of its Facts and Contentions; and
- –it is expected that the hearing of this matter will require a listing of no less than four days;
- the Commission will benefit from the Respondent being represented by Counsel for many reasons including management of witnesses, ensuring the matter is dealt with in a timely manner, and ensuring that only those matters that are relevant to the facts in issue are presented to the Commission;
- to determine disputed questions of fact, it is most likely that the Commission will be required to making findings of credit in respect of various witnesses. The Commission will be assisted by skillful examination and cross‑examination of the parties' witnesses, with the presence of Counsel ensuring that the cross-examination of the Applicant is relevant and appropriate;
- the Commission would benefit from the presence of Counsel who has experience in proceedings under the Act in the application of these complex legal principles;
- the Respondent relies upon the decisions in Le Pierres v Herzfeld Pty Ltd[1]and Wanninayake v State of Queensland (Department of Natural Resources and Mines)('Wanninayake')[2] in which leave was granted;
- with respect to fairness between the parties, Crown Law is bound by the Model Litigant Principles. Crown Law will seek to ensure that Counsel also complies with the Model Litigant Principles and will not take unfair advantage of the Applicant; and
- whilst the Applicant is currently self-represented in the proceedings, she has had two previous legal representatives during the period 19 June 2019 to 20 April 2020 and 20 April 2020 to 20 August 2020.
Consideration
- [8]The discretion to grant leave for a party to be legally represented is outlined in s 530(4) of the Act.
- [9]As considered in Wanninayake[3], the decision by the Applicant not to engage legal representation does mean that the Respondent should be denied the opportunity to efficiently present its case.
- [10]It was noted in Le Pierres v Herzfeld Pty Ltd,[4] that there are questions of law to be determined in unfair dismissal cases. Industrial Commissioner Neate noted in Wanninayake that legal representation can assist the Commission in relation to matters involving points of law, and skillful cross-examination of witness can only assist the Commission in determining the matters it has to decide. Industrial Commissioner Neate concludes -
Competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real issues of fact and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced (whether by examination in chief or cross examination and by the tendering of relevant documents), and that submission are confined to the matters which the commission must decide.
- [11]This matter has now progressed to the stage where it will be listed for hearing in the near future. In accordance with a Directions Order, disclosure has occurred and witness lists have been exchanged between the parties. It is clear that examination-in-chief, reply and cross-examination will be required at the hearing. I am satisfied that in these circumstances, Counsel will enable the proceedings to be dealt with more efficiently having regard to the complexity of the matter.
- [12]I am also satisfied that granting leave is likely to shorten the length and subsequently reduce the costs of the arbitration.
- [13]I note the Respondent's responsibility to act as a model litigant in accordance with the Model Litigant Principles. I am satisfied that this responsibility, along with the Commission's fair conduct of proceedings, will ensure no disadvantage is suffered by the Applicant throughout the consideration and determination of this matter.
Conclusion
- [14]For the reasons outlined above, I grant leave for the State of Queensland (Department of Education) to be legally represented in the proceedings TD/2019/50.
Order
The Commission grants leave for the State of Queensland (Department of Education) to be legally represented.