Plumb v Rockhampton Regional Council
[2024] QIRC 94
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- Unreported Judgment
- Plumb v Rockhampton Regional Council[2024] QIRC 94
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Plumb v Rockhampton Regional Council[2024] QIRC 94
Plumb v Rockhampton Regional Council[2024] QIRC 94
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Plumb v Rockhampton Regional Council [2024] QIRC 094 |
PARTIES: | Plumb, Jason (Applicant) v Rockhampton Regional Council (Respondent) |
CASE NO.: | TD/2021/97 |
PROCEEDING: | Application in existing proceedings for the Respondent to be represented by a lawyer |
DELIVERED ON: | 24 April 2024 |
MEMBER: | Merrell DP |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND OTHER MATTERS – APPLICATION TO TAKE FURTHER ACTION IN A PROCEEDING – APPLICATION FOR LEAVE TO BE GIVEN TO BE REPRESENTED BY A LAWYER – Applicant was employed by the Respondent and was dismissed – on 11 November 2021, the Applicant applied to the Queensland Industrial Relations Commission for reinstatement under the Industrial Relations Act 2016 – Applicant's application the subject of a conciliation conference – conciliation certificate issued on 23 December 2021 – no other step taken by the Applicant until 23 February 2024 when the Applicant, in effect, applied under r 230 of the Industrial Relations (Tribunals) Rules 2011 to take further action on the basis that he wanted to make a public interest disclosure under the Public Interest Disclosure Act 2010 – Respondent made application in existing proceedings for leave to be represented by a lawyer on the basis that such representation would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter, as referred to in s 530(4)(a) of the Industrial Relations Act 2016 – leave given for the Respondent to be represented by a lawyer in further proceedings before the Queensland Industrial Relations Commission |
LEGISLATION: | Industrial Relations Act 2016, s 318, s 484, s 530, s 539 and s 545 Industrial Relations (Tribunals) Rules 2011, r 95 and r 230 |
Reasons for Decision
Introduction
- [1]Mr Jason Plumb was employed by the Rockhampton Regional Council ('the Council') in the position of Manager, Fitzroy River Water. On 5 October 2021, Mr Plumb was dismissed from his position. By application filed on 11 November 2021, Mr Plumb applied to this Commission for reinstatement ('Mr Plumb's 2021 application'). Mr Plumb's 2021 application was given case number TD/2021/97.
- [2]A conciliation conference between the parties was held before Industrial Commissioner McLennan on 22 December 2021 following which, pursuant to s 318(3)(a) of the Industrial Relations Act 2016 ('the IR Act'), a certificate was issued.
- [3]Mr Plumb took no further step in relation to his application for reinstatement following the issuing of that certificate until 23 February 2024 when he filed a General Application ('Mr Plumb's 2024 application') in which he stated that the decision sought was:
I wish to make a Public Interest Disclosure about alleged wrongdoing and have the matter TD 97 [2021] re-opened so that it can be reconsidered appropriately according to the Industrial Relations Act and the Human Rights Act and other relevant legislation.
- [4]Relevantly, the section upon which Mr Plumb's 2024 application was made was s 484 of the IR Act. Following a mention of Mr Plumb's 2024 application on 20 March 2024, I indicated to the parties that it appeared to me that Mr Plumb's 2024 application was in fact an application for Mr Plumb to take further action, pursuant to r 230 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), in relation to his 2021 application. This was because s 484 of the IR Act, which confers on the Commission discretion to reopen a proceeding, could not be enlivened because no decision or recommendation had been made by Industrial Commissioner McLennan in relation to Mr Plumb's 2021 application. In that regard I indicated to the parties that, pursuant to s 539(e) of the IR Act, I would waive the irregularity in Mr Plumb's 2024 application.
- [5]Prior to the mention being held by me as referred to above, the Council, by application filed on 5 March 2024, applied, pursuant to s 530 of the IR Act, for leave to be represented by a lawyer ('the Council's application'). Mr Plumb opposes the Council's application.
- [6]These reasons concern my decision about the Council's application.
- [7]For the reasons that follow, pursuant to s 530(1)(e)(ii) of the IR Act, I will give leave for the Council to be represented by a lawyer in respect of Mr Plumb's 2024 application.
The relevant provisions of the Industrial Relations Act 2016
- [8]The effect of s 530(1)(e) of the IR Act is that a party to proceedings or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if, for proceedings before the Commission (other than the Full Bench), all parties consent or, for a proceeding relating to a matter under a relevant provision, the Commission gives leave.
- [9]An application for reinstatement under ch 8 of the IR Act is a matter under a relevant provision for the purposes of s 530(1)(e) of the IR Act. As a consequence, Mr Plumb's 2024 application is a proceeding relating to a matter under a relevant provision.
- [10]Section 530(4) of the IR Act relevantly provides:
- An industrial tribunal may give leave under subsection (1) only if–
- it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
- 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
- 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.
The parties' arguments
- [11]The basis of the Council's application is that the Commission should give it leave to be represented by a lawyer, because:
- pursuant to s 530(4)(a) 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, namely the complexity that is apparent in Mr Plumb's 2024 application, which would include not only considering the relevant application of the IR Act, but, as Mr Plumb also asserts, the Human Rights Act 2019 and '… other relevant legislation' in circumstances where Mr Plumb states that he wishes to make a '… Public Interest Disclosure'; and
- it has a small internal legal team that does not advise the Council on employment and industrial matters.
- [12]Mr Plumb opposes legal representation for reasons that include:
- he is currently under significant financial stress;
- he is concerned that a costs order may be made against him which he would not be able to afford to pay; and
- the Council being given leave to be represented by lawyer would make achieving the objectives of the IR Act harder.
- [13]There are two reasons why I will give leave for the Council to be legally represented.
- [14]First, as I understand Mr Plumb's 2024 application, a summary of the grounds upon which that application is pursued is:
- in June 2023, he became aware of key information from a Right to Information application which now causes him to reasonably believe that a Council officer '… allegedly provided false and misleading information and deliberately omitted important information' in the Council's formal response to Mr Plumb's 2021 application;
- as a consequence, he contends that:
- –the Council wilfully contravened the IR Act by providing false and misleading information which contributed to depriving him of an entitlement to have a fair hearing by the Commission which was inconsistent with the Human Rights Act 2019; and
- –the Council wilfully breached its obligations as his employer under the relevant certified agreement, the IR Act, the Local Government Act 2009 and the Public Sector Ethics Act 1994; and
- the Council's actions were not consistent with a deed of settlement he was '… required to sign under significant duress given their actions' and which was also entered into on the basis of false and misleading information provided by the Council.
- [15]These grounds obviously expose a complexity to Mr Plumb's current claims which could not have been present in the proceedings before Industrial Commissioner McLennan in 2021. However, the more determinative issue is how these matters may come into play in respect of the exercise of the Commission's discretion, pursuant to r 230 of the Rules, to allow Mr Plumb to take further action in relation to his reinstatement application, when the last action he took was in December 2021.
- [16]Rule 230 of the Rules provides:
230 Lapse of proceeding after at least 1 year’s delay
- This rule applies if–
- an application starting a proceeding has been filed; and
- no action has been taken by the applicant in relation to the application for at least 1 year since the last action was taken by the applicant in the application.
- A party may only take further action on the application with an order of the court, commission or registrar.
- An application for an order under subrule (2) must be in the approved form and state the following–
- the steps taken in the proceeding;
- an explanation for the circumstances of the delay;
- the steps (including a timetable) proposed to be taken to progress the proceeding;
- any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out;
- the merits of the proceeding;
- why the court, commission or registrar should make the order despite the delay.
- [17]Having regard to these issues, it seems clear to me that giving the Council leave to be represented by a lawyer would enable the proceedings, namely, Mr Plumb's 2024 application, to be dealt with more efficiently.
- [18]In coming to this view, I have taken into account the reasons given by Mr Plumb for his opposition to the Council being given leave to be represented by a lawyer. In this regard, the possibility that, if he is unsuccessful in his present application, Mr Plumb may, not must, be required to pay the Council's legal costs, is not so decisive as to outweigh the efficiency brought about by the Council being represented by a lawyer in the present proceedings.[1] I reach the same conclusion in respect of the fact that Mr Plumb's present financial circumstances may prevent him from obtaining his own legal representation. Further, it is not clear to me what objectives of the IR Act Mr Plumb says will not be achieved if the Council is represented by a lawyer.
- [19]For the above reasons, my discretion to give leave to the Council to be represented by a lawyer is enlivened.
- [20]Secondly, the Council's affidavit evidence, filed in support of the Council's application, is that its internal legal team does not provide the Council with advice regarding employment matters, and that the matters upon which it does provide legal advice to the Council concern general local government matters, legislative compliance, contract preparation, negotiation and disputes, general commercial matters and property matters. In these circumstances, it seems to me that there is a proper basis for me to exercise my enlivened discretion in favour of the Council to give it leave to be represented by a private lawyer.
- [21]For the reasons I have given, I give leave to the Council to be represented by a lawyer in this proceeding.
- [22]There is one other matter. When Mr Plumb filed his 2024 application, the Industrial Registry gave the application the case numbers B/2024/14 and PID/2024/1. For the reasons given above, Mr Plumb's 2024 application is, for all practical purposes, an application to the Commission for him to take further action in relation to his 2021 application, namely, case number TD/2021/97, pursuant to r 230 of the Rules. This number should be the case number for Mr Plumb's 2024 application. For this reason, I will exercise my discretion pursuant to r 95(1) of the Rules and correct that matter.
Orders
- [23]I make the following orders:
- Pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016, the Respondent is given leave to be represented by a lawyer for this proceeding.
- Pursuant to r 95(1) of the Industrial Relations (Tribunals) Rules 2011, the Case Number for this proceeding will be renumbered to TD/2021/97.
Footnotes
[1] See Industrial Relations Act 2016, s 545(1) and s 545(2).