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  4. Robertson v McDonald's Australia Limited (No. 5) - [2023] QIRC 92

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Robertson v McDonald's Australia Limited (No. 5)[2023] QIRC 92

Robertson v McDonald's Australia Limited (No. 5)[2023] QIRC 92

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Robertson v McDonald's Australia Limited (No. 5) [2023] QIRC 092

PARTIES:

Robertson, B

(Complainant)

v

McDonald's Australia Limited

(Respondent)

CASE NOS.:

AD/2021/7 and B/2023/7

PROCEEDING:

Applications in existing proceedings and Application for injunctions

DELIVERED ON:

14 February 2023

HEARING DATE:

14 February 2023

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [57] of these reasons for decision.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION ON THE BASIS OF AGE – Complainant alleges age discrimination and the asking of unnecessary questions against the Respondent – Complainant filed and served statement of facts and contentions – Respondent filed application seeking an order to strike out the Complainant's proceeding – Complainant subsequently filed various applications in existing proceeding and an application for injunction concerning the way the Respondent advertised to fill certain vacancies – Complainant's applications dismissed

LEGISLATION:

Industrial Relations Act 2016, s 424, s 473 and s 530

Industrial Relations (Tribunals) Rules 2011, r 75

Jurisdiction of Courts (Cross-vesting) Act 1987, s 5

Uniform Civil Procedure Rules 1999, r 53

CASES:

Robertson v McDonald's Australia Limited (No. 4) [2022] QIRC 438

APPEARANCES:

The Complainant on his own behalf.

Ms L. Dearlove of Colin Biggers & Paisley and Ms N. Longhurst of McDonald's Australia Limited for the Respondent.

Reasons for Decision (ex tempore)

Introduction

  1. [1]
    On 5 September 2020, Mr B. Robertson made a complaint to the Queensland Human Rights Commission ('QHRC') against McDonald's Australia Limited ('McDonald's'). The complaint concerned allegations, in the work area, of age discrimination and asking unnecessary questions contrary to the provisions of the Anti‑Discrimination Act 1991. On 16 February 2021, the complaint was referred from the QHRC to this Commission ('Mr Robertson's complaint').
  1. [2]
    By order of Davis J, President of the Industrial Court of Queensland dated 29 April 2022, - being an order arising out of an appeal Mr Robertson made to that Court against an earlier decision of the Commission about his complaint - Mr Robertson's complaint was stayed until he filed a Notice of Facts and Contentions which put McDonald's on notice of the case that it has to meet.
  1. [3]
    Since that time, the Commission has made a number of interlocutory decisions in relation to various applications filed by Mr Robertson.
  1. [4]
    However, on 30 September 2022, Mr Robertson filed and served a second statement of facts and contentions in relation to his complaint of unlawful discrimination.
  1. [5]
    On 18 November 2022, McDonald's filed an application in existing proceedings seeking an order striking out Mr Robertson's proceedings ('McDonald's application'). A Directions Order dated 22 November 2022 was subsequently made by me for the hearing and determination of McDonald's application. McDonald's complied with the second order made, namely, by filing and serving its outline of argument on 20 December 2022. Mr Robertson has not filed any submissions in relation to McDonald's application. McDonald's application will be heard on 24 February 2023.
  1. [6]
    Mr Robertson has filed eight other applications seeking various orders.
  1. [7]
    The dates of those applications, and a summary of the relief sought by them, are:
  1. (a)
    by application filed on 31 October 2022, Mr Robertson seeks orders that:
  1. (i)
    his complaint be heard on the papers; and
  1. (ii)
    that the Commission seek confirmation from Legal Aid Queensland ('LAQ') that it has refused him legal aid and that the Commission '… liaise' with LAQ to require LAQ to provide him with advice; or, in the alternative
  1. (iii)
    the State of Queensland or the Commission provide him with funds for the provision of private legal advice in relation to his substantive complaint ('the 31 October application');
  1. (b)
    by application filed on 2 December 2022, Mr Robertson seeks an order that the order made by Industrial Commissioner Dwyer on 4 March 2021, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), giving leave for McDonald's to be represented by a lawyer, be '… withdrawn' ('the 2 December application');
  1. (c)
    by application filed on 19 January 2023, Mr Robertson seeks an order that:
  1. (i)
    today's hearing and other hearings in relation to his complaint be adjourned until after a determination of whether or not:
  1. LAQ will provide him legal advice in relation to his complaint; or
  1. the Commission will provide him with funds for the provision of private legal advice in relation to his complaint; and
  1. (ii)
    today's matters be heard on the papers ('the first 19 January application');
  1. (d)
    by application filed on 19 January 2023, Mr Robertson seeks orders that pursuant to s 473(1)(b) of the IR Act and r 75 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'):
  1. (i)
    McDonald's '… utilize the words/s "Junior" and "Junior wages apply"' and 'Senior' and 'Senior position' when it advertises to employ a 'Junior' or 'Senior' respectively; and
  1. (ii)
    McDonald's does not mandate or request right to work documents of applicants prior to any offer of employment ('the second 19 January application');
  1. (e)
    by application filed on 20 January 2023, Mr Robertson seeks an order that '… in the interest of justice that the matter AD/2021/7 be deemed as to be unsound or as understood as to be in want and the cases vacated, or as understood and a retrail [sic] or as understoodis [sic] granted' ('the 20 January application');
  1. (f)
    by application filed on 7 February 2023, Mr Robertson seeks an order that, pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 and r 53(2) of the Uniform Civil Procedure Rules 1999, his complaint is transferred to the Federal Court of Australia ('the 7 February application');
  1. (g)
    by application filed on 8 February 2023, Mr Robertson seeks an order that part of the transcript of the proceeding of his complaint on 26 May 2021 before Industrial Commissioner Dwyer, and certain emails between him and a representative of LAQ dated 7 and 8 February 2023 are '… entered into papers' and '… are considered prior to the next hearing or as understood' ('the 8 February application'); and
  1. (h)
    by application filed on 9 February 2023, Mr Robertson seeks an order that the document referring his complaint from the QHRC to the Commission, and other prescribed forms filed by McDonalds, were non-compliant with the Rules because they do not contain his residential or business address ('the 9 February application').
  1. [8]
    The parties were advised that these eight applications would be heard today.
  1. [9]
    Today, I gave Mr Robertson the opportunity to make submissions about each of his applications, although in many instances, despite these applications being filed by him, he refused to make submissions in the absence of having legal advice.
  1. [10]
    Pursuant to a Directions Order dated 9 December 2022, McDonald's filed and served written submissions in respect of the 31 October application and 2 December application. Today, I also heard further submissions from Ms Dearlove, Special Counsel of Colin Biggers & Paisley, on behalf of McDonalds.
  1. [11]
    My decision about each of the eight applications follows.
  1. [12]
    I will deal with the 31 October application and the first 19 January application first.

The 31 October application

  1. [13]
    Mr Robertson seeks an order that his complaint, namely, his claim of unlawful discrimination against McDonald's, be heard and determined on the papers.
  1. [14]
    I refuse that application. There will need to be a trial of Mr Robertson's complaint. To pursue his complaint, Mr Robertson will have to give evidence. It may well be the case that McDonald's wishes to cross-examine Mr Robertson, particularly in relation to any loss or damage he claims.
  1. [15]
    Furthermore, my experience thus far in hearing and determining Mr Robertson's applications, and by having regard to the written submissions Mr Robertson filed in some of those matters, convinces me that I have a far better chance of understanding Mr Robertson's submissions by having him make oral submissions as opposed to relying upon his written submissions.[1]
  1. [16]
    For these reasons, my view is that Mr Robertson should make oral submissions in support of his substantive complaint.
  1. [17]
    As to the other relief sought in this application, it is not the role of this Commission to liaise with LAQ, or indeed any other provider of legal services, to determine why or why not legal advice has not been provided to a litigant.
  1. [18]
    Similarly, the Commission has no function or power to provide Mr Robertson with funds for him to be able to obtain private legal advice. If Mr Robertson wants the State of Queensland to consider providing him with funding to obtain private legal advice in respect of his complaint, then he should make such a request. Having regard to the stage of the proceedings, that request should have been made directly to the State of Queensland some time ago.
  1. [19]
    For these reasons, the 31 October application is dismissed.

The first 19 January application

  1. [20]
    For the same reasons as given above, I will not make any determination that any application in existing proceedings made by Mr Robertson be determined solely on the papers.
  1. [21]
    Also, as I have stated, it is not the function of the Commission to provide litigants with funding to obtain private legal advice. Whether or not LAQ is going to provide Mr Robertson with legal advice is a matter between it and Mr Robertson. Given the stage of Mr Robertson's complaint, I will not adjourn any proceeding in relation to his complaint pending any decision made by the LAQ about whether or not it will provide Mr Robertson with advice in relation to his complaint. Indeed, on the material before me, the present situation between Mr Robertson and LAQ is that he has made a complaint to it, a complaint which is pending, and that it has not provided him with further legal advice. As I understand his submissions, Mr Robertson has sought the intervention of the Attorney-General in relation to his complaint with LAQ.
  1. [22]
    Mr Robertson's complaint was first referred to this Commission on 16 February 2021, almost two years ago. The resources of the Commission are not infinite. It is in the public interest that Mr Robertson's complaint be ultimately determined as soon as is reasonably possible. There are many other applicants in matters before this Commission who want their matters heard and determined. The continual delay in finalising Mr Robertson's complaint affects those applicants having their matters heard and determined. In addition, McDonald's has the right to have its application heard and determined in an expeditious way. Mr Robertson's unresolved complaint with LAQ is not a basis for any further delay in determining Mr Robertson's complaint.
  1. [23]
    The first 19 January application is dismissed.

The 2 December application

  1. [24]
    Mr Robertson seeks an order that the order by Industrial Commissioner Dwyer, dated 4 March 2021, giving leave for McDonald's to be represented by a lawyer, be withdrawn.
  1. [25]
    I will not make any such order.
  1. [26]
    Mr Robertson seems to claim that s 424 of the IR Act is the source of power for me to make such an order. That section deals with the jurisdiction and powers of the Industrial Court of Queensland and not of the Commission.
  1. [27]
    In any event, assuming (without deciding) that I had discretion to make the order Mr Robertson seeks, I would not exercise such discretion in his favour. There are a number of reasons for this.
  1. [28]
    First, if Mr Robertson was aggrieved by Industrial Commissioner Dwyer's order, he had the opportunity to appeal against that order in 2021. I am not aware of any such appeal.
  1. [29]
    Secondly, it seems that Mr Robertson wants such an order because McDonald's has its own in-house lawyers. While that may be the case, that is not a basis to interfere with an earlier, validly made order by another Member of the Commission about legal representation.
  1. [30]
    Thirdly, McDonald's has been represented by private lawyers since 4 March 2021. The passage of time would militate against the leave given to McDonald's to be represented by a lawyer being withdrawn.
  1. [31]
    Finally, the fact that Mr Robertson is representing himself is a misfortune but not a privilege. It is not a reason to interfere with an earlier validly made decision of another Member of the Commission for McDonald's to be represented by a private lawyer, even if a power to so interfere with that decision did exist.
  1. [32]
    The 2 December application is dismissed.

The second 19 January application

  1. [33]
    Mr Robertson applies, pursuant to s 473 of the IR Act, for the Commission to grant (what I assume to be mandatory) injunctions to compel McDonald's to change the way it advertises vacant positions and the means by which it recruits employees.
  1. [34]
    This application is misconceived.
  1. [35]
    Section 473(1)(a) of the IR Act confers discretion on the Commission to grant an injunction to compel compliance with an industrial instrument, a permit or the IR Act. There is no power in s 473 of the IR Act which confers discretion on the Commission to make orders of the kind sought by Mr Robertson.
  1. [36]
    The second 19 January application is dismissed.

The 20 January application

  1. [37]
    The power relied upon by Mr Robertson for the order he seeks in this application is s 424 (1)(a) and (b) of the IR Act. As referred to earlier in these reasons, that section sets out the jurisdiction and powers of the Industrial Court of Queensland and not of the Commission.
  1. [38]
    It is difficult to understand the relief sought by Mr Robertson. Doing the best I can, having regard to the attachment to this application, Mr Robertson seems to be contending that the interlocutory decisions made by the Commission thus far have been vitiated by:
  1. (a)
    the fact that he is self-represented, whereas McDonald's has been represented by a lawyer; and
  1. (b)
    bias, prejudgement and official misconduct and corruption on the part of various bodies, allegations of which are unparticularised,

such that Mr Robertson wants all the previous interlocutory decisions made, which were detrimental to him, set aside and redetermined.

  1. [39]
    Even if such a power existed for me to make such an order, I would not, as a matter of discretion, make such an order in favour of Mr Robertson.
  1. [40]
    As I stated earlier, the fact that Mr Robertson is self-represented is a misfortune for him but not a privilege. The hearings over which I have presided, concerning the various interlocutory applications made by Mr Robertson, have been conducted in a manner that has been fair to both him and to McDonald's. The fact that McDonald's has been represented by a lawyer in these applications, and that none of these applications have been successful for Mr Robertson, is not a reason to make an order of the kind sought by Mr Robertson.
  1. [41]
    This application is misconceived for these reasons.
  1. [42]
    The 20 January application is dismissed.

The 7 February application

  1. [43]
    Mr Robertson wants an order that his complaint is transferred to the Federal Court of Australia pursuant to the exercise of power contained in s 5 of the Jurisdiction of Courts (Cross‑vesting) Act 1987.
  1. [44]
    This application is misconceived. The Jurisdiction of Courts (Cross-vesting) Act 1987 does not confer power on the Commission to transfer any proceeding, pending in it, to the Federal Court of Australia.
  1. [45]
    The 7 February application is dismissed.

The 8 February application

  1. [46]
    Again, Mr Robertson contends that s 424 of the IR Act is the source of power for me to make the order he seeks in this application. That section does not confer any power on the Commission.
  1. [47]
    As best as I can make out, the material that Mr Robertson wants me to consider goes to the fact that he is self-represented and that he is presently in dispute with LAQ about whether or not it will provide him with additional advice in relation to his complaint. As I understand it, Mr Robertson wants me to consider this material so as to adjourn his proceeding.
  1. [48]
    Given the stage of the proceeding and the length of time it has been on foot, I am not prepared to adjourn the proceeding or vacate the current Directions Orders that are in place in respect of the hearing which will take place on 24 February 2023 concerning McDonald's application.
  1. [49]
    For these reasons, the 8 February application is dismissed.

The 9 February application

  1. [50]
    As best as I can understand this application, Mr Robertson is contending that because the document from the QHRC, referring his complaint to this Commission, did not contain his residential or business address, and because other forms, prescribed under the Rules, which have been filed by McDonald's did not contain his residential or business address, none of those documents have been validly filed.
  1. [51]
    This application is misconceived.
  1. [52]
    The referral from the QHRC did not contain Mr Robertson's residential or business address because he did not provide such an address to the QHRC. Nonetheless, the referral was received by the Commission in February 2021 and Mr Robertson's complaint, the subject of that referral, has been the subject of various interlocutory proceedings before the Commission, all of which came about because of applications made by Mr Robertson.
  1. [53]
    Mr Robertson has previously taken no issue with the fact that the QHRC referral did not contain his residential or business address. Similarly, Mr Robertson has never taken any issue with the fact that the application filed by McDonald's, and other forms filed by McDonald's, did not contain his residential or business address. The reason, as best as I can make out, that none of those forms contained Mr Robertson's residential or business address is because Mr Robertson has never supplied one, at least one of which I am aware.
  1. [54]
    I also note that in none of the applications made by Mr Robertson, the subject of today's hearing, did he provide a residential or business address.
  1. [55]
    There may come a point in time, depending on the nature of the application or form, where the Industrial Registry will not accept a document provided by a party for filing unless it contains a residential or business address for Mr Robertson.
  1. [56]
    For these reasons, the 9 February application is dismissed.

Orders

  1. [57]
    I make the following orders:
  1. The application in existing proceedings filed by the Complainant on 31 October 2022, in Case No. AD/2021/7, is dismissed.
  1. The application in existing proceedings filed by the Complainant on 2 December 2022, in Case No. AD/2021/7, is dismissed.
  1. The application in existing proceedings filed by the Complainant on 19 January 2023, in Case No. AD/2021/7, is dismissed.
  1. The application filed by the Complainant on 19 January 2023, in Case No. B/2023/7, is dismissed.
  1. The application in existing proceedings filed by the Complainant on 20 January 2023, in Case No. AD/2021/7, is dismissed.
  1. The application in existing proceedings filed by the Complainant on 7 February 2023, in Case No. AD/2021/7, is dismissed.
  1. The application in existing proceedings filed by the Complainant on 8 February 2023, in Case No. AD/2021/7, is dismissed.
  1. The application in existing proceedings filed by the Complainant on 9 February 2023, in Case No. AD/2021/7, is dismissed.

Footnotes

[1] See Robertson v McDonald's Australia Limited (No. 4) [2022] QIRC 438, [9].

Close

Editorial Notes

  • Published Case Name:

    Robertson v McDonald's Australia Limited (No. 5)

  • Shortened Case Name:

    Robertson v McDonald's Australia Limited (No. 5)

  • MNC:

    [2023] QIRC 92

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    14 Feb 2023

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
Robertson v McDonald's Australia Limited (No. 4) [2022] QIRC 438
2 citations
Jump To
Cite 1 - [2022] QIRC 438
Cite 2 - [2022] QIRC 438

Cases Citing

Case NameFull CitationFrequency
Robertson v McDonald's Australia Limited (No 3) [2023] ICQ 113 citations
Robertson v McDonald's Australia Limited (No. 7) [2023] QIRC 1913 citations
1

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