Sovereign v Delta FM Australia Pty Ltd
[2023] QIRC 21
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- Unreported Judgment
- Sovereign v Delta FM Australia Pty Ltd[2023] QIRC 21
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Sovereign v Delta FM Australia Pty Ltd[2023] QIRC 21
Sovereign v Delta FM Australia Pty Ltd[2023] QIRC 21
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Sovereign v Delta FM Australia Pty Ltd and Anor [2023] QIRC 021 |
PARTIES: | Sovereign, Darren Joel (Complainant) v Delta FM Australia Pty Ltd (First Respondent) and Norman, Hayley (Second Respondent) |
CASE NO.: | AD/2022/55 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 24 January 2023 |
MEMBER: | Merrell DP |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – Complainant was employed by First Respondent – Second Respondent was the supervisor of the Complainant – Complainant made complaint to the Queensland Human Rights Commission alleging he had been sexually harassed by the Second Respondent in contravention of the Anti-Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission – directions made for the parties to file and serve statements of facts and contentions and then for complaint to be the subject of a further conciliation conference before the Queensland Industrial Relations Commission – statements of facts and contentions filed and served – First Respondent subsequently, but before the date set for the further conciliation conference, made an application for leave to be represented by a lawyer in the further conciliation conference, and any subsequent proceedings, having regard to s 530(4)(a) and s 530(4)(c) of the Industrial Relations Act 2016 – further conciliation conference adjourned pending decision about First Respondent's application for leave to be represented by a lawyer – whether First Respondent should be given leave to be represented by a lawyer in the proceedings, namely, the further conciliation conference – whether giving such leave to the First Respondent would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter – whether it would be unfair not to allow the First Respondent to be represented by a lawyer having regard to fairness between the parties – no persuasive material that the matter is complex – in all the relevant circumstances, it would not be unfair not to allow the First Respondent to be represented by a lawyer having regard to fairness between the parties – application in existing proceedings for the First Respondent to be given leave to be represented by a lawyer in the further conciliation conference refused |
LEGISLATION: | Anti-Discrimination Act 1991, ch 3, pt 2 Industrial Relations Act 2016, s 530 |
CASES: | State of Queensland (Queensland Health) v Hume [2022] ICQ 1 |
Reasons for Decision
- [1]Mr Darren Sovereign, from 4 November 2019, was employed by Delta FM Australia Pty Ltd ('Delta') as a Groundsperson in the maintenance team at Pimpama State Primary College ('the College').
- [2]From about 26 April 2020, Ms Hayley Norman was employed by Delta at the College in the position of Facility Supervisor. In that position, Ms Norman was Mr Sovereign's supervisor.
- [3]By complaint made to the Queensland Human Rights Commission on 23 April 2022, Mr Sovereign alleged that he had been the subject of sexual harassment by Ms Norman in contravention of ch 3, pt 2 of the Anti-Discrimination Act 1991. It is also alleged that Delta is vicariously liable for that alleged conduct of Ms Norman ('the complaint').
- [4]On 5 August 2022, the complaint was referred to this Commission and following a procedural conference on 29 September 2022, by Further Directions Order dated the same day, the parties were ordered to file and serve statements of facts and contentions, make disclosure and participate in a further conciliation conference to be held on 16 December 2022 for the purpose of the Commission assisting the parties to try to reach an agreed resolution of the complaint ('the further conciliation conference').
- [5]All parties have filed and served their statements of facts and contentions.
- [6]Mr Sovereign makes a number allegations that certain comments and other conduct of Ms Norman towards him was sexual harassment.
- [7]Delta contends that:
- its investigation of the complaints of sexual harassment, made by Mr Sovereign before his employment with it ended, were found to be unsubstantiated;
- it took reasonable steps to prevent Ms Norman from (allegedly) sexually harassing Mr Sovereign; and
- a Deed of Release entered into between Mr Sovereign and it should be taken into account by this Commission in dismissing Mr Sovereign's complaint.
- [8]Ms Norman denies the allegations made by Mr Sovereign.
- [9]The further conciliation conference was adjourned because of notice given by Delta that it wished to be represented by a lawyer at that conference.
- [10]Subsequently, on 23 December 2023, Delta, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), made an application in existing proceedings for leave to be granted to it to be represented by a lawyer in the further conciliation conference and any subsequent proceedings ('Delta's application').
- [11]The basis of Delta's application is that the Commission should give leave for it to be represented by a lawyer, because, pursuant to s 530(4)(a) and (c) of the IR Act, such legal representation would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter, and it would be a unfair not to allow Delta to be legally represented having regard to fairness between the parties.
- [12]Mr Sovereign and Ms Norman are self-represented. Mr Sovereign opposes Delta being given leave to be represented by a lawyer at the further conciliation conference. Ms Norman has no objection to leave being given to Delta to be represented by a lawyer.
- [13]The question for my determination is whether, pursuant to s 530(1)(c) of the IR Act, I should give leave to Delta to be represented by a lawyer in respect of the further conciliation conference and, if needed, any subsequent proceedings.
- [14]For the reasons that follow, I do not give leave for Delta to be represented by lawyer at the further conciliation conference.
The relevant provisions of the IR Act
- [15]Relevantly to Delta's application, in considering whether or not to give leave for a lawyer to represent a person or party, the Commission may only give leave if:
- it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter;[1] or
- 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.[2]
- [16]In State of Queensland (Queensland Health) v Hume,[3] I set out how, in my opinion, s 530(4)(a) of the IR Act is to be construed. That decision concerned an application for leave for a party to an appeal to the Industrial Court of Queensland to be represented by private counsel.
- [17]In that case I relevantly stated:
- [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.
- [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.
- [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.
- [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.[4]
Is the Commission's discretion, to give leave to Delta to be represented by a lawyer in the further conciliation conference, enlivened?
- [18]I am not persuaded by Delta's submissions and by the evidence contained in the supporting affidavit of Mr James Arthur Garrett, Employee Relations Manager, Compass Group Australia[5] affirmed on 23 December 2022 ('Mr Garrett's affidavit'), that my discretion to give leave to Delta to be represented by a lawyer, in the further conciliation conference, is enlivened.
- [19]There are two reasons for this.
- [20]First, Delta's statement of facts and contentions does not allege complex questions of fact. It relevantly contends that Ms Norman did not sexually harass Mr Sovereign, and, even if she did, Delta is not vicariously liable for Ms Norman's contravening conduct because it took reasonable steps to prevent her contravening the Anti‑Discrimination Act 1991, by having appropriate workplace policies and training in place.
- [21]Delta also contends that a Deed of Release entered into between Mr Sovereign and it in December 2020 '… is a factor the Commission may still take into consideration overall in deciding whether or not to dismiss the Complaint.' Assuming, without deciding, that specific contention is sound as a matter of law, the dismissal of Mr Sovereign's complaint is not something that would be determined at the further conciliation conference. The purpose of the further conciliation conference is for the Commission to assist the parties to try to reach an agreed settlement of Mr Sovereign's complaint.
- [22]Given the straightforward allegations of fact involved in the complaint, I cannot see how giving leave to Delta to be represented by a lawyer would enable the further conciliation conference to be dealt with in, at least, a more timely manner.
- [23]For this reason, I am not persuaded that giving leave to Delta to be represented by a lawyer at the further conciliation conference would enable that proceeding to be dealt with more efficiently, having regard to the complexity of the matter.
- [24]Secondly, Mr Garrett's evidence is that he is responsible for the day-to-day management of industrial and employee relations matters for over approximately 12,000 employees within the Compass Group Australia and that he reports to Mr Andrew Chamberlain, the National Workplace Relations Manager, who is a registered legal practitioner in Western Australia although he (Mr Chamberlain) has not practiced as a lawyer since in or around 2015. Having regard to the parties' contentions, and my view that as a consequence, the matters that are likely to come up in the further conciliation conference are not complex, it seems to me that Delta, in the further conciliation conference, will be competently represented by Mr Garrett and, or in the alternative, Mr Chamberlain.
- [25]While it is a fact that Mr Garrett and Mr Chamberlain are based in Perth, that is not a reason that enlivens my discretion to grant leave to Delta to be represented by a lawyer in the further conciliation conference. Mr Garrett and, or in the alternative, Mr Chamberlain, can participate in the conference by telephone. That is a common accommodation made for representatives in this Commission.
- [26]For this reason, I am not persuaded that it would be unfair not to allow Delta to be represented by a lawyer having regard to fairness between it, Mr Sovereign and Ms Norman, at the further conciliation conference.
- [27]For all these reasons, I am of the view that my discretion to give leave to Delta to be represented by a lawyer in the further conciliation conference is not enlivened.
- [28]If Mr Sovereign's complaint is not resolved at or following the further conciliation conference, and there is a hearing of his complaint, then that will be before another Member of the Commission.
- [29]There is nothing that prevents Delta from making a further application for leave to be represented by a lawyer if that stage is reached.
Conclusion
- [30]For the reasons I have given, I refuse to give leave to Delta to be represented by a lawyer in the further conciliation conference.
Order
- [31]I make the following order:
The First Respondent's application in existing proceedings, for leave to be represented by a lawyer in the further conciliation conference, is dismissed.