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Alistair v Brisbane City Council[2024] QIRC 293

Alistair v Brisbane City Council[2024] QIRC 293

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Alistair v Brisbane City Council [2024] QIRC 293

PARTIES:

Alistair, Annabelle

(Applicant)

v

Brisbane City Council

(Respondent)

CASE NO.:

TD/2024/73

PROCEEDING:

Application in existing proceedings 

DELIVERED ON:

12 December 2024

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

Leave is granted for the Respondent to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld).

CATCHWORDS:

APPLICATION FOR REINSTATEMENT- APPLICATION FOR LEGAL REPRESENTATION – where respondent has applied for leave to be legally represented – where applicant opposes application – factors to be considered by the Commission in determining whether to allow legal representation – complexity of the matter – where leave is granted for legal representation.

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 529, 530

CASES:

Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16

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

Reasons for Decision

Introduction

  1. [1]
    The Applicant, Ms Annabelle Alistair, has filed an application for reinstatement, seeking, inter alia, reinstatement to her former position ('the proceeding').
  1. [2]
    The Respondent, Brisbane City Council (‘Council’) has applied for orders that it be granted leave to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
  1. [3]
    The Applicant objects to leave being granted for the Respondent to be legally represented.

Relevant background

  1. [4]
    The Applicant commenced employment as a Bus Driver Trainee with the Respondent on 23 June 2023. The Applicant was employed on a temporary contract of employment for the purpose of her undertaking a Traineeship in bus transport. The Applicant’s contract of employment had a termination date of 23 June 2025 with an option to terminate the contract earlier if she passed the requirements of her traineeship prior to that date.
  1. [5]
    On 8 November 2023, the Applicant was suspended from her employment due to a number of allegations raised against her.
  1. [6]
    The Respondent commenced an investigation and show cause process into the allegations against the Applicant and on 16 July 2024, the Applicant was terminated from her employment. The allegations substantiated against the Applicant are in relation to her conduct on 13 different occasions.
  1. [7]
    On 16 July 2024, the Applicant filed an application for reinstatement.
  1. [8]
    The Applicant contends that the dismissal was unfair on a number of grounds, including that:
  1. she was afforded limited procedural fairness, specifically, she had not been warned prior to being suspended from the workplace, there was a delay in allowing her an opportunity to respond to the material facts, the Respondent misrepresented information, and the Respondent did not provide her with copies of evidence relied upon;
  1. the Respondent has “changed their allegations” multiple times over a period of months;
  1. the Respondent has threatened and bullied her during the process and contacted her when directed not to;
  1. she was given little notice of her dismissal; and
  1. she was terminated within 12 months of a workplace acquired injury.
  1. [9]
    The Applicant has also contended that she was subjected to harassment, bullying, poor organizational justice, violence, aggression, victimization, threatening behaviour and received poor support during her employment with the Respondent. The Applicant has raised a number of allegations against five Council employees, from whom she is seeking apologies.[1]
  1. [10]
    In response to her application for reinstatement, the Respondent seeks that the application be dismissed for want of jurisdiction, on the basis that it contends that she was not protected from unfair dismissal in accordance with s 315(d) of the IR Act because she was employed as a temporary employee for a specific task.[2]
  1. [11]
    On 4 October 2024, the Respondent filed a Form 101 Application ('Application'), written submissions, together with a supporting affidavit of a solicitor from Wotton + Kearney, in the proceedings seeking leave to be legally represented.
  1. [12]
    On 10 October 2024, the Applicant, filed a Form 102 Response ('Response') and supporting affidavit objecting to the Respondent’s application for legal representation.
  1. [13]
    The Commission issued directions for the parties to file further submissions with respect to the Respondent’s application. The Respondent filed written submissions on 17 October 2024. The Applicant did not provide submissions in reply and sought to rely on the material filed on 10 October 2024.
  1. [14]
    The application for reinstatement filed on 16 July 2024, states that the Rail, Tram and Bus Union (‘RTBU’) is the Applicant’s representative in the proceedings.
  1. [15]
    However, the documentation relied on by the Applicant objecting to the Respondent’s legal representation was not filed by the RTBU on behalf of the Applicant. Rather, the Applicant filed those documents herself.
  1. [16]
    On 18 November 2024, the Industrial Registry wrote to the RTBU, copied into the Applicant and Respondent, asking that the RTBU confirmed that it continued to represent the Applicant in the proceedings.
  2. [17]
    On 18 November 2024, the RTBU responded, in part, in the following terms:

…

All filings and documents will be supplied by Annabel Allistar unless the RTBU is asked for support or assistance.

As of today all work on this unfair dismissal hearing is being done by Annabel Alistar.

  1. [18]
    The question for my determination is whether leave should be granted for the Respondent be legally represented in the proceeding.

Relevant legislation

  1. [19]
    Section 529 of the IR Act relevantly states:

529 Representation of parties generally

  1. A party to proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented in the proceedings by—
  1. a lawyer, only in accordance with section 530; or
  2. an employee or officer of an organisation appointed in writing as the agent of the party or person; or
  3. if the party or person is an organisation—an employee, officer or member of the organisation; or
  4. if the party or person is an employer—an employee or officer of the employer; or
  5. another person appointed in writing as the agent of the party or person, only with the leave of the industrial tribunal conducting the proceedings.
  1. However, a party or person may not be represented under subsection (1) (e) by a person who—
  1. directly or indirectly demands or receives a fee for representing the party or person; or
  2. is an employee or officer of, or acting for, an entity (other than an organisation) that purports to represent the industrial interests of employees or employers.
  1. The industrial tribunal may give leave under subsection (1) (e) only if—
  1. giving leave would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  2. 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
  3. 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.
  1. In this section—

"industrial tribunal" means the Court of Appeal, court, full bench or commission or an Industrial Magistrates Court.

"proceedings" —

  1. means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  1. includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.
  1. [20]
    Section 530 of the IR Act provides for legal representation in the following terms:

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 –

…

  1. for other proceedings before the commission, other than the full bench –
  1. all parties consent; or
  2. for a proceeding relating to a matter under a relevant provision - the commission gives leave; or

…

  1. An industrial tribunal may give leave under subsection (1) only if –
  1. it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  2. 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
  3. 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. For this section, a party or person is taken not to be represented by a lawyer if the lawyer is -
  1. an employee or officer of the party or person; or
  2. an employee or officer of an entity representing the party or person if the entity is -
  1. an organisation; or
  2. a State peak council; or
  3. another entity that only has members who are employers.
  1. In this section –

industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.

proceedings –

  1. means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  2. includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.

relevant provision, for a proceeding before the commission other than the full bench means –

  1. chapter 8; or
  2. section 471; or
  3. chapter 12, part 2 or 16.
  1. [21]
    In Sillay v State of Queensland (Queensland Corrective Services)[3] the Industrial Court of Queensland recently considered the statutory construction of s 530 as follows:
  1. [30]
    Section 529(1)(a) prohibits representation of a party by a lawyer except in accordance with s 530. By s 530(1)(e), proceedings before the QIRC15 may involve legal representation only by leave. The bases upon which leave may16 be given are prescribed by s 530(4).
  2. [31]
    The circumstances upon which a lawyer may appear before the QIRC are governed by ss 529 and 530 of the Act. If the discretion arises under s 530(4) to give leave to a party to be represented by a lawyer, then the discretion falls to be exercised. There are no presumptions as to how the discretion is exercised. However, no executive or judicial discretion vested by an Australian statute is unfettered. The discretion is limited and circumscribed by the purpose for which it was bestowed.17
  3. [32]
    Section 530 has a typical structure. The factual circumstances prescribed by each of ss 530(4)(a), (b) and (c) are jurisdictional facts, the establishment of which empowers the QIRC to exercise a discretion to grant leave to a party to be legally represented.
  4. [33]
    Subsection (4)(a) requires the QIRC to be satisfied that legal representation “would enable the proceedings to be dealt with more efficiently” if lawyers represent a party. However, that assessment is limited. It is conducted “having regard to the complexity of the matter”.
  5. [34]
    The “matter” is the controversy the subject of the principal proceedings. The “proceedings” are the principal proceedings, namely the application for final relief.
  6. [35]
    The task then is to:
  1. (a)
    identify the complexity; and
  2. (b)
    identify how, “having regard to the complexity”, having a party represented by lawyers would “enable the proceedings to be dealt with more efficiently”.
  1. [36]
    Each of ss 530(4)(b) and 530(4)(c) concern an assessment of fairness. However, the assessment to be conducted under each of the two subsections is quite different.
  2. [37]
    Section 530(4)(b) requires an assessment only of the position of the applicant for legal representation. Legal representation “may” be allowed where it would be unfair to deny it “because the party or person is unable to represent the party’s or person’s interests in the proceeding”.18 Therefore, the first question is whether the party or person is “unable to represent [their] interests in the proceedings”. If the answer to that question is in the affirmative, then the use of the word “because” requires a causal connection to be established between the inability of the person to represent themselves and any unfairness in not allowing representation.
  3. [38]
    Section 530(4)(c) requires consideration of the respective positions of the parties to the proceedings. Legal representation “may” be allowed where it would be unfair not to allow legal representation to the party. However, as with s 530(4)(a), the assessment is limited. The assessment of whether it would be “unfair” is made “having regard to fairness between the party or person, and other parties or persons in the proceedings”.
  4. [39]
    In conducting the assessment under s 530(4)(c), s 530(5) is relevant. A lawyer employed by a party (here the State) may appear for that party without leave. Therefore, when considering the unfairness to a party who employs lawyers, the question becomes whether it would be unfair not to allow the party to be represented by private lawyers rather than their own employed lawyers. That assessment then is had “having regard to fairness between the party … and other parties in the proceedings”.
  1. [22]
    In State of Queensland (Department of Premier and Cabinet) v Dawson,[4] His Honour O'Connor VP referred to the involvement of legal representation and the efficient conduct of litigation, and the consideration of those matters in various authorities as follows:
  1. The involvement of Counsel in the efficient conduct of litigation was expressed in Application by R.A.v where Deputy President Sams wrote:
  1. [18]
    Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner’s professional obligations to the Commission and the Courts. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith:

[A] barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.

  1. [19]
    More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd said at para [48]:

A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission.

  1. [20]
    Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission’s powers and functions. In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved. I agree with what was said by the Full Bench in Priestley:
  1. [13]
    In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions

(citations omitted).

Should leave be granted for the Respondents to be legally represented?

  1. [23]
    The discretion to grant leave for a party to be legally represented is outlined in s 530(4) of the IR Act. The Commission may grant leave if:
  1. it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter (s 530(4)(a)); or
  1. 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 (s 530(4)(b)); or
  1. 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 (s 530(4)(c)).
  1. [24]
    The Respondent relies on s 530(4)(a) and s 530(4)(c) in making the application.
  1. [25]
    The Applicant objects to the Respondent’s application on the ground that she is not seeking to be legally represented. The Applicant’s submission was in the following terms:
  1. [1]
    In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions.
  2. [2]
    The Applicant would request the Commission considers if this request by the Respondent adduces to ‘just and equitable’ proceedings.
  3. [3]
    The Applicant acknowledges s530A of the IR Act 2016.
  4. [4]
    The Applicant acknowledges that the details of the matter may be of public interest.
  5. [5]
    The Applicant acknowledges s 530(4)(a) and s 530(4)(c) of the IR Act 2016.
  6. [6]
    Given the particulars of the matter and the circumstances presented to the Commission the Applicant accepts the decision of the Commission regarding the Respondent’s Form 101.

Section 530(4)(a) IR Act

  1. [26]
    The Respondent submits that legal representation will enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The Respondent submits[5] that the following factors are indicia of the matter’s complexity:
  1. The Applicant has made a number of allegations against the Respondent, in addition to alleging that she was unfairly dismissed, namely:
  1. that the Respondent has “bullied” the Applicant during the disciplinary proceedings undertaken during their employment;
  2. that the Applicant was terminated from their employment within twelve (12) months of a “workplace acquired injury”; and
  3. the Respondent has “changed their allegations” in respect of the disciplinary process undertaken against the Applicant.
  1. [27]
    The Respondent submits that consequently, evidence will need to be called from various lay witnesses and, in circumstances where the Commission will be required to make findings of credit in respect of those witnesses, the Commission will be assisted by the appropriate examination and re-examination of the witnesses. 
  1. [28]
    The Respondent further submits that legal representation would enable the proceedings to be dealt with more effectively because it would assist with narrowing the relevant issues in dispute.
  1. [29]
    Section s 530(4)(a) requires the following assessment to be undertaken:[6]
  1. identify the complexity of the “matter”, being the controversy the subject of the principal proceedings; and
  1. identify how, “having regard to the complexity”, having a party represented by lawyers would “enable the proceedings to be dealt with more efficiently”.
  1. [30]
    The proceedings have commenced to a point where, following the issuing of a certificate pursuant to s 318(3)(a) of the IR Act, directions have been issued to prepare the matter for hearing. As a consequence of those directions, each of the parties have filed a Statement of Facts and Contentions.
  1. [31]
    The Applicant’s Statement of Facts and Contentions, in addition to claiming that the termination of her employment was unfair, raises a number of allegations against the Respondent generally and five Council employees. The Applicant seeks specific relief with respect to those five employees.
  1. [32]
    The allegations the Applicant makes are serious and include an allegation of sexual harassment which she claims to have made a complaint about.
  1. [33]
    The Applicant contends that she was subject to, inter alia, discrimination, bullying, victimisation and harassment.
  1. [34]
    The Commission will need to assess the allegations the Applicant makes and determine their relevance to the unfair dismissal proceedings. This adds to the complexity of the matter.
  1. [35]
    Further issues raised by the Applicant which add to the complexity of the proceedings also include the fact that the Applicant contends that she was dismissed within twelve months of acquiring a workplace injury.
  1. [36]
    It is also noted that the Respondent contends, amongst other things, that the Commission does not have jurisdiction to hear the application because the Applicant is not protected from unfair dismissal in accordance with s 315(d) of the IR Act. Consideration of the Respondent’s jurisdictional objection will require consideration as to whether there was an express or implied entitlement to any ongoing employment with the Respondent once the Applicant’s traineeship contract ended. The jurisdictional objection and the consideration with respect to the operation and effect of the contract of employment adds to the complexity of the matter.
  1. [37]
    Having now identified the complexity of the matter, regard must be had as to whether having a party represented by a lawyer would enable the proceedings to be dealt with more efficiently. Having regard to the word “efficient”, the Macquarie Dictionary relevantly provides as follows:

Efficient

Adjective 1. Effective in the use of energy or resources.

2.  adequate in operation or performance; having and using the requisite knowledge, skill, and industry; competent; capable.

3.  producing an effect, as a cause; causative.

[Latin efficiens, present participle, accomplishing]

– efficiently, adverb

  1. [38]
    In the context of proceedings, I consider that dealing with proceedings more efficiently includes efficiently dealing with proceedings by effectively using resources and time.
  1. [39]
    Having regard to the matters that add to the complexity of this matter, they are matters that may potentially impact on the efficient conduct of the proceedings.
  1. [40]
    The Commission could be assisted by one of the parties being legally represented to assist in the efficient conduct of the proceedings by:
  1. making submissions as to the relevance of issues raised by the parties in the context of the proceedings in order to avoid unrelated issues being introduced;
  1. making forensic decisions with respect to the calling of witnesses and conducting appropriate examination and cross-examination of witnesses relevant to the proceedings; and
  1. making appropriate submissions with respect to the jurisdictional objection.
  1. [41]
    Consequently, having regard to the complexity of the matter I consider leave should be granted for the Respondent to be legally represented to enable the proceedings to be dealt with more efficiently.
  1. [42]
    Given that I have granted leave for the Respondent to be legally represented pursuant to s 530(4)(a) of the IR Act it is not necessary for me to consider the Respondent’s application pursuant to s 530(4)(c) of the IR Act.
  1. [43]
    However, the Commission observes that it is incumbent upon a party seeking leave pursuant to s 530(4)(c) of the IR Act to establish that 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.
  1. [44]
    In conducting the assessment as to whether it would be unfair, regard should be had to the relevance of s 530(5) of the IR Act.[7]
  1. [45]
    Having regard to these matters, the material relied on by the Respondent with respect to its reliance on s 530(4)(c) of the IR Act does not assist in the assessment of whether it would be unfair not to allow legal representation to the party.
  1. [46]
    However, given that leave has been granted for the Respondent to be legally represented pursuant to s 530(4)(a) of the IR Act, it is unnecessary to consider the Respondent’s reliance on s 530(4)(c) of the IR Act any further.

Order

  1. [47]
    I make the following order:
  1. Leave is granted for the Respondent to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld).

Footnotes

[1]Statement of Facts and Contentions filed by the Applicant on 10 October 2024.

[2]Statement of Facts and Contentions filed by the Respondent on 31 October 2024, 42.

[3][2024] ICQ 16 (‘Sillay’).

[4][2021] QIRC 118.

[5]Submissions filed by the Respondent on 4 October 2024, 8.

[6]Sillay (n 3) 16, 34-35.

[7]Sillay (n 3) 38-39.

Close

Editorial Notes

  • Published Case Name:

    Alistair v Brisbane City Council

  • Shortened Case Name:

    Alistair v Brisbane City Council

  • MNC:

    [2024] QIRC 293

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    12 Dec 2024

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
Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16
2 citations
Jump To
Cite 1 - [2024] ICQ 16
Cite 2 - [2024] ICQ 16
State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118
2 citations
Jump To
Cite 1 - [2021] QIRC 118
Cite 2 - [2021] QIRC 118

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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