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  4. Giles v State of Queensland (Office of the Governor) - [2022] QIRC 464

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Giles v State of Queensland (Office of the Governor)[2022] QIRC 464

Giles v State of Queensland (Office of the Governor)[2022] QIRC 464

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Giles v State of Queensland (Office of the Governor) [2022] QIRC 464

PARTIES:

Giles, Angela

(Complainant)

v

State of Queensland (Office of the Governor)

(Respondent)

CASE NO.:

TD/2022/231

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

28 November 2022

MEMBER:

HEARD AT:

Dwyer IC

On the papers

ORDER:

Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the Respondent is given leave to be represented by a lawyer.

CATCHWORDS:

APPLICATION FOR REINSTATEMENT – APPLICATION FOR LEAVE TO BE GIVEN TO BE REPRESENTED BY A LAWYER – application for reinstatement filed in the Queensland Industrial Relations Commission – application in existing proceedings by the Respondent for leave to be given to be legally represented pursuant to s 530(1)(c) of the Industrial Relations Act 2016 – opposition by Applicant for leave to be given – whether leave should be given Respondent to be legally represented having regard to s 530(4) of the Industrial Relations Act 2016 – Respondent given leave to be legally represented

LEGISLATION:

Industrial Relations Act 2016, s 530

CASES:

State of Queensland (Queensland Health) v Hume [2022] ICQ 1

State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118

Dawson v State of Queensland [2021] QIRC 118

Atkins v Brisbane City Council [2020] QIRC 176

Reasons for Decision

Introduction

  1. [1]
    On 18 October 2022, Ms Angela Giles ('Ms Giles') filed an application for reinstatement in the Industrial Registry.
  1. [2]
    In accordance with the directions order dated 19 October 2022, the Respondent filed a Form 34 – Lawyer's Notice of address for service on 31 October 2022. On 1 November 2022, an employer response to the reinstatement application was filed.
  1. [3]
    On 14 November 2022, Ms Giles filed a formal objection to the application for legal representation filed by the Respondent. The matter was then allocated to me to address the objection.
  1. [4]
    The matter was mentioned on 21 November 2022 to determine whether Ms Giles wished to press the objection before the conciliation conference was scheduled, or whether Ms Giles might defer her objection until after the conciliation conference. Ms Giles indicated she wished to press her objection to legal representation as the priority.

The legislative provisions

  1. [5]
    The effect of s 530(1)(c) of the IR Act is that a party to proceedings, or a person ordered or permitted to appear or to be represented in proceedings, may only be represented by a lawyer if the Commission grants leave.[1]
  1. [6]
    Section 530(4) of the IR Act provides:
  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
  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.

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 State of Queensland (Queensland Health) v Hume,[2] Merrell DP considered how s 530(4)(a) of the IR Act is to be construed:[3]
  1. [36]
    Thirdly, s 530(4)(a) of the IR Act refers to the question of whether leave would enable '… the proceedings' to be dealt with more efficiently, having regard to the complexity of '… the matter.'
  1. [37]
    Chapter 11, pt 5, div 3 of the IR Act is headed 'Conduct of proceedings.' Division 3 contains s 529 and s 530 of the IR Act. Section 529(1) of the IR Act provides that a person or party may be represented in the proceedings by an agent appointed in writing or, if the party or person is an organisation, an officer or member of that organisation. In s 529(2)(a) of the IR Act, the noun 'proceedings' is relevantly defined to mean proceedings under the IR Act or another Act being conducted by the Court, the Commission, an Industrial Magistrates Court or the Registrar. The noun 'proceedings' is relevantly defined in the same way in s 530(7) of the IR Act.
  1. [38]
    Having regard to that context, when s 530(4)(a) of the IR Act refers to '… the proceedings', my opinion is that phrase, relevantly to matters such as the present, refers to an application for relief made by a person which an industrial tribunal has jurisdiction to grant.
  1. [39]
    By contrast, s 530(4)(a) of the IR Act then refers to the complexity of '… the matter.' Because of the different phrase used, my opinion is that '… the matter' is a reference to the particular controversy or controversies requiring determination by the industrial tribunal so as to make a decision about the application for relief or, put another way, to determine the proceedings.
  1. [40]
    Fourthly, s 530(4)(a) of the IR Act is otherwise to be construed according to the ordinary meaning of the words used in that provision. A value judgment has to be formed as to whether or not the giving of leave to a party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The matter does not have to be complex, or compared to other matters that have or may become before the Court, be more complex; but regard must be had to the complexity of the matter.
  1. [41]
    Further, in having regard to that complexity, a judgment has to be formed as to whether allowing the party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently. Section 530(4) of the IR Act is relevantly concerned with whether or not discretion should be exercised in favour of a party seeking leave to be represented by a lawyer in proceedings before the Court. As a consequence, my opinion is that the adverb 'efficiently', in the context that it is used in s 530(4)(a) of the IR Act, is concerned with, at least, timeliness.
  1. [42]
    Fifthly, if the Court forms one of the value judgments in s 530(4)(a) to (c) of the IR Act, s 530 is otherwise silent as to the factors the Court must consider in terms of exercising the discretion. In such a case, the relevant considerations must be determined from the scope and object of the provision conferring the discretion.
  1. [43]
    The object of s 530 of the IR Act is to set out the circumstances by which a party or person may be represented in the proceedings by a lawyer. The circumstances described in s 530(4), which enliven the discretion of the Court to give leave, concern efficiency in the conduct of the proceedings. The circumstances also concern fairness, having regard to the particular circumstances of the person or party seeking leave to be represented by a lawyer, and also fairness having regard to the other parties or persons in the proceedings.
  1. [44]
    As a consequence, depending on the circumstances of a particular case, matters such as efficiency and, or in the alternative, fairness, may be relevant considerations as to whether or not the discretion, once enlivened, should be exercised.
  1. [8]
    I adopt these conclusions of Deputy President Merrell. .

Submissions of the Respondent

  1. [9]
    The Respondent provided submissions as to why legal representation should be granted with their application filed on 8 November 2022. With respect to s 530(4), the Respondent submits the factors listed in s 530(3) are divisible, meaning that representation can be granted when the Commission is satisfied that legal representation would meet one of the factors.
  1. [10]
    The Respondent submits, in addressing the efficiency and complexity factors, that:
  • The application for reinstatement is legally complex, because the jurisprudence concerning circumstances in which an employee has been constructively dismissed is limited. The Respondent is pressing the jurisdictional objection, namely that Ms Giles employment was not terminated by the Respondent;
  • The legal questions before the Commission would be more efficiently resolved by the parties placing relevant authorities before it, and engaging on those matters during any hearing of the proceedings; and
  • It has been held by the Commission that the specialised skill of counsel and/or industrial legal practitioners assists the Commission in resolving the issues in question.[4]
  1. [11]
    The Respondent submits the Commission's obligations to ensure its limited resources are effectively used will be assisted with the involvement of legal representation for the Respondent.
  1. [12]
    The Respondent submits they do not employ officers who have industrial and advocacy experience before the Commission, nor have they ever defended a reinstatement application on constructive dismissal. The Respondent thus submits it would be unfair for them to navigate the proceedings without legal representation.
  1. [13]
    In addressing the fairness between the parties, the Respondent notes my decision in Atkins v Brisbane City Council[5] in which it was noted the applicant's decision not to engage legal representation does not mean the Respondent should be denied the opportunity where it would assist in efficiently presenting a case involving some complexities.
  1. [14]
    The Respondent submits there are no competing considerations that are capable of outweighing the importance of ensuring the proceedings are conducted as efficiently as possible, and not unfairly. The Respondent thus submits leave can be granted because the preconditions in s 530(4) are met.

Submissions of Ms Giles

  1. [15]
    Ms Giles submits the Commission's role as described at paragraphs '2291 and 2292 of the Fair Work Act 2008 Explanatory Memorandum' is to operate efficiently and informally and where appropriate in a non-adversarial matter, and persons in the Commission would generally represent themselves.
  1. [16]
    Ms Giles submits the matter is not legally complex, nor is it any more complex than other constructive dismissal cases brought before the Commission. She submits that the comment as to there being few constructive dismissal judgements arising out of matters in the Commission is irrelevant, as she submits the Commission will consider the statements of both parties and make a judgement on the weight of the evidence.
  1. [17]
    Ms Giles submits the legal representatives are a third party to the events surrounding Ms Giles resignation, and she thus submits their involvement will not create any efficiencies in the matter.
  1. [18]
    Ms Giles submits that it is the Commissioner's role to navigate the proceedings and provide dismissal protections for employees and employers with a fast, flexible and informal process, not the role of legal representatives.
  1. [19]
    Ms Giles also contends neither of the examples provided for in s 530(4)(c) apply to her or the Respondent, and it is thus not unfair if they do not have legal representation.
  1. [20]
    In response to the submissions of the Respondent in relation to legal representation reducing the cost to the Commission, Ms Giles states she believes in not wasting taxpayers' money, which she submits is what will occur if the Respondent is able to have legal representation at the taxpayers' expense.
  1. [21]
    Ms Giles concludes for these reasons leave should not be granted to the Respondent to be legally represented because she contends the requirements of s 530(4) are not met.

Submissions in Reply of the Respondent

  1. [22]
    The Respondent filed submissions in reply on 23 November 2022.
  1. [23]
    The Respondent rejects the submission of Ms Giles that the matter is not legally complex. Genuine constructive dismissal cases involve an assessment of whether the conduct of the employer met the legal threshold that is required, which often involves an assessment of whether the conduct was a serious breach of the employee's contract or repudiatory contract.
  1. [24]
    The Respondent submits the Commission would be assisted with legal representation to provide relevant authorities, including at the hearing of the Respondent's jurisdictional objection, which they maintain should be heard prior to any merits hearing following a conference of the matter.
  1. [25]
    The Respondent also notes questions of facts exist between the parties, such as whether Ms Giles trained other staff, and her interactions with others prior to her resignation. They submit determining the disputed questions of fact will likely involve the Commission making findings of credit in respect of various witnesses. The Respondent notes the Commission has acknowledged efficiency can be achieved in the conduct of proceedings by a lawyer's ability to place relevant and precise matters of evidence and law before it.[6]
  1. [26]
    The Respondent submits it is not the Commissioner's role to navigate the proceedings on behalf of a party and submits in circumstances where they have a small staff, none of whom have industrial or advocacy experience, they should be entitled to engage legal representation to assist with the proceedings.
  1. [27]
    The Respondent notes Ms Giles' choice not to engage representation should not be a determinative factor in relation to the criteria in s 530(4)(c) of the IR Act.

Consideration

  1. [28]
    Ms Giles' application details numerous events which she contends lead to her resigning her employment. Whether or not the allegations are in themselves complex, they are extensive and contribute to a number of factual issues associated with the circumstances which have resulted in what she submits is a constructive dismissal.
  1. [29]
    It is evident from many aspects of her submissions that Ms Giles labours under critical misconceptions about the nature and complexity of the proceedings upon which she has embarked. Most obviously her reference to the 'Explanatory Memorandum to the Fair Work Act 2008' reveals the extent to which Ms Giles suffers a critical lack of understanding.[7]
  1. [30]
    But beyond this, it is equally clear that Ms Giles fails to appreciate the inherent complexity of an application alleging constructive dismissal. Such matters are notoriously difficult to determine and invariably include a jurisdictional challenge, especially where the fact of resignation is not disputed.
  1. [31]
    The very great challenge for Ms Giles will be to demonstrate that her resignation is somehow rendered an involuntary action on her part. In some matters involving constructive dismissal there will be evidence of conversations with management where the things said or done are alleged to have been said or done with a direct intention to procure a resignation.
  1. [32]
    While matters of that type can be complex from an evidentiary perspective i.e. proving what was said and done (and why), this matter is more complex in that there is no allegation of direct pressure or coercion but rather, it is inter alia the broader circumstances of her employment and the lack of management action to address her workload concerns that Ms Giles contends forced her hand. The factual matrix will extend over many months and the numerous interactions between Ms Giles and management over that period will all require careful examination to determine the objective effect of each interaction.
  1. [33]
    It is not an uncommon happening where an individual will report that they tendered their resignation through sheer exasperation with the actions (or inaction) of their employer. Where such assertions are made in day to day conversation they often do not meet scrutiny or challenge and as such, they are accepted as the narrative surrounding the individual's resignation. But it is something else altogether to claim that working conditions were so unbearable that resignation was effectively forced upon an individual, and that the individual is entitled to orders from the Commission for reinstatement and compensation.
  1. [34]
    This matter will undoubtedly involve a complex factual dispute which will culminate in equally complex legal argument. If Ms Giles, unskilled as she obviously is, chooses this path without legal representation, she is more than free to do so. But her choice in that regard should not be imposed on the respondent who also bear the burden of this complexity in defending the claims.    
  1. [35]
    In the circumstances, I consider that allowing the respondent to be legally represented will ensure the efficient conduct of the matter, while also ensuring fairness to all parties. For completeness I would add that any feelings of apprehension experienced by Ms Giles arising from the legal representation of the respondent ought to be put aside. Ms Giles may be assured that a fundamental role of the Commission in such matters is to ensure that each party to a proceeding receives a fair hearing. 

Conclusion

  1. [36]
    For the reasons I have given, I will exercise my discretion in favour of the Respondent.
  1. [37]
    Pursuant to s 530(1)(c) of the Act, I give leave for the Respondent to be represented by a lawyer.

Order

  1. [38]
    I make the following order:

Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the Respondent is given leave to be represented by a lawyer.

Footnotes

[1] A lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007: Acts Interpretation Act 1954, sch 1 (definition of 'lawyer').

[2] [2022] ICQ 1.

[3] Citations omitted.

[4] State of Queensland (Queensland Health) v Hume [2022] ICQ 1, [55]; State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118, [18].

[5] [2020] QIRC 176, [23].

[6] Dawson v State of Queensland [2021] QIRC 118, [16].

[7] The reference is perplexing given that the proceedings are commenced and being pursued under the Industrial Relations Act 2016

Close

Editorial Notes

  • Published Case Name:

    Giles v State of Queensland (Office of the Governor)

  • Shortened Case Name:

    Giles v State of Queensland (Office of the Governor)

  • MNC:

    [2022] QIRC 464

  • Court:

    QIRC

  • Judge(s):

    Member Dwyer IC

  • Date:

    28 Nov 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Atkins v Brisbane City Council [2020] QIRC 176
2 citations
Jump To
Cite 1 - [2020] QIRC 176
Cite 2 - [2020] QIRC 176
State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118
4 citations
Jump To
Cite 1 - [2021] QIRC 118
Cite 2 - [2021] QIRC 118
Cite 3 - [2021] QIRC 118
Cite 4 - [2021] QIRC 118
State of Queensland (Queensland Health) v Hume [2022] ICQ 1
3 citations
Jump To
Cite 1 - [2022] ICQ 1
Cite 2 - [2022] ICQ 1
Cite 3 - [2022] ICQ 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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