Black v Mintpearl Pty Ltd[2023] QIRC 209

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Introduction

1. [1]
   On 30 December 2021, Ms Chelsea Black ('the Complainant') made a complaint to the Queensland Human Rights Commission ('the QHRC') alleging sex discrimination in the area of work, sexual harassment and victimisation ('the complaint').

2. [2]
   The Complainant's complaint arises from an incident alleged to have occurred in July 2019 at The Coolangatta Hotel, where the Complainant was employed as a Bartender. The complaint was lodged with the QHRC outside of the one-year statutory limitation period. However, a decision was made by the QHRC on 5 December 2022, pursuant to s 138 of the Anti-Discrimination Act 1991 ('the AD Act'), to accept the out of time allegations.

3. [3]
   On 5 June 2023, the QHRC referred the complaint to the Queensland Industrial Relations Commission ('the Commission').

4. [4]
   On 19 June 2023, the First and Second Respondents filed a joint application for leave to be represented by a lawyer. An affidavit of Mr Tyrone William Prisk was also filed on 19 June 2023 in support of that application.

5. [5]
   The First and Second Respondents seek an order that they be given leave to be legally represented pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act') in these proceedings. 

6. [6]
   The Complainant has not filed an application for leave to be legally represented in these proceedings, nor has the Complainant communicated a response to the Respondents' application.

7. [7]
   This matter has been allocated to me for conciliation. I have yet to direct the parties to file and serve their statements of facts and contentions, or to disclose all directly relevant documents, for the purpose of conducting the conciliation.

8. [8]
   The question for me to determine is whether, in the present circumstances, I should give leave to the Respondents to be represented by a lawyer pursuant to s 530(1)(c) of the      IR Act.

The First and Second Respondents' application and submissions

9. [9]
   The effect of s 530(1)(c) of the IR Act is that a party to proceedings may be represented by a lawyer only if, for proceedings before the Commission other than the Full Bench under the AD Act, the Commission gives leave.

10. [10]
    Section 530(4) of the IR Act provides:

3. (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 the party’s or person’s interests in the proceedings; 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.

11. [11]
    The Respondents submit that leave ought to be granted for them to be legally represented on the basis that one or more of the above preconditions are satisfied.

Submissions on efficiency and complexity

12. [12]
    The Respondents refer to the decision in State of Queensland (Queensland Health) v Hume,^[1] and acknowledge that regard must be had to the complexity of the matter.

13. [13]
    The Respondents submit that the complaint form to the QHRC, and the material annexed to the referral to the Commission, raise complex issues in that the Complainant:

    1. made an out-of-time complaint to the QHRC;

2. alleges that she has been victimised because she complained about sexual harassment;

3. asserts that she has "developed a fair bit of mental trauma over the incident" which is supported by reference to treatment from both a psychologist and a therapist;

4. asserts that she intends to call various witnesses including persons previously employed by the First Respondent;

5. asserts that the harm or hurt has been experienced as a result of the alleged sexual harassment and also by reason of the conduct of the First Respondent's management of the incident;

6. asserts that she is restricted in the places she can now perform work; and

7. purports to be bringing these proceedings on behalf of other unnamed and unidentified persons who are not party to these proceedings against the Second Respondent. 

14. [14]
    The Respondents further submit that:

• the claims in respect of a number of allegations raised, the alleged witnesses and the details of the alleged sexual comments, have not been clearly articulated by the Complainant and the Complainant purports to be bringing these proceedings on behalf of others against the Second Respondent, and, as such, legal representation will assist the Commission to ensure that no irrelevant materials or allegations are sought to be introduced into the proceedings;

• notwithstanding the QHRC accepted the out-of-time complaint, such a significant period of time is likely to be prejudicial to the Respondents and any witnesses that may be called by the parties, and, as such, the Commission will be assisted by legal representation to navigate the historical events and admissibility of evidence which will largely turn on the recollection and credibility of witnesses;

• they anticipate that two police complaints, made by the Complainant in relation to the alleged conduct of the Second Respondent, will be raised in the proceedings and there are potential implications for the Second Respondent in light of this, and, as such, legal representation will aid the Commission to manage the evidence, submissions and issues relating to privilege, which will be of importance in the interests of the Second Respondent; and

• the anti-discrimination proceedings and criminal proceedings have affected the mental health of the Second Respondent, who rejects the allegations, however, he is unskilled and unable to defend himself in these proceedings, and the effect on his well-being means that he may be significantly prejudiced if he does not have representation.

Submissions on fairness

15. [15]
    It is submitted that as the First Respondent does not have in-house lawyers who specialise in employment law or discrimination law, the Respondents do not have the ability to effectively represent themselves, such that it would be unfair not to allow their representation by a lawyer.

16. [16]
    On consideration of any perceived unfairness felt by the Complainant as a self-represented litigant, with the Respondents being legally represented, the Respondents refer to Wanninayake v State of Queensland (Department of Natural Resources and Mines),^[2] where Industrial Commissioner Neate determined that:

Competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real questions of facts and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced (whether by cross examination and by evidence in chief or the tendering of relevant documents), and that the submissions are confined to matters which the Commission must decide.

…

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.

17. [17]
    The Respondents submit that the Complainant did not oppose the Respondents being legally represented at the QHRC and this suggests that the Complainant is not prejudiced by the continued involvement of lawyers for the Respondents. 

This is not a case where leave should be granted for legal representation at the present time

18. [18]
    This is not a case where my discretion to give leave to the Respondents to be legally represented is triggered.

19. [19]
    I accept that, should the matter proceed to a final hearing, there may well be disputed issues of fact and complex issues of law that may need to be determined to ultimately consider whether or not the Respondents have contravened the AD Act, and, if so, what orders should be made. I also accept that giving leave to the Respondents to be represented by lawyers would enable the resolution of the disputed matters to be dealt with more efficiently. However, those matters do not, on their own, give rise to a conclusion that legal representation would enable the proceedings to be dealt with more efficiently at the present time.

20. [20]
    The specific matters referred to by the Respondents, which they contend would enable the proceedings to be dealt with more efficiently, do not necessarily lend themselves to the efficient conduct of the proceedings in the context of the conciliation of the Complainant's complaint. That is to say, it is not the case that the matters referred to by the Respondents will enable the proceedings to be dealt with more efficiently by way of conciliation. Similarly, the issues of fairness referred to by the Respondents do not trigger my discretion to grant leave for them to be legally represented in a conciliation conference. Those issues may well be relevant at a hearing of the complaint, but they are not for the purposes of a conciliation conference.

21. [21]
    If I am unable to assist the parties to resolve the matter at the conciliation conference, the Respondents may make a further application, for leave to be legally represented, to the Member of the Commission who will hear the trial of the complaint.

Conclusion

22. [22]
    For the reasons I have given, I do not give leave for the First and Second Respondents to be represented by a lawyer at the present stage of the Complainant's complaint before the Commission.

Order

23. [23]
    I make the following order:

The application made by the First and Second Respondents for them to be given leave to be represented by a lawyer, pursuant to s 530(1)(c) of the Industrial Relations Act 2016, is dismissed.