Alvarado v State of Queensland (Queensland Health) and Anor
[2024] QIRC 73
•28 March 2024
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Alvarado v State of Queensland (Queensland Health) and Anor [2024] QIRC 073 |
| PARTIES: | Alvarado, Jose v State of Queensland (Queensland Health) and Lowry, Chris |
| CASE NO.: | AD/2024/11 |
PROCEEDING: | Application in existing proceedings for the Respondents to be represented by a lawyer |
| DELIVERED ON: | 28 March 2024 |
MEMBER: HEARD AT: | Merrell DP On the papers |
ORDER: | Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the Respondents are given leave to be represented by a lawyer at the further conciliation conference on 5 July 2024. |
| CATCHWORDS: | HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – APPLICATION FOR LEAVE TO BE GIVEN TO BE REPRESENTED BY A LAWYER – Complainant performed work for the First Respondent as a Patient Support Officer – Complainant made complaint to the Queensland Human Rights Commission alleging he had been the subject of unlawful discrimination in contravention of the Anti‑Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission – complaint yet to be the subject of conciliation before the Queensland Industrial Relations Commission – Respondents 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, and on the basis of matters of fairness, as referred to in s 530(4) of the Industrial Relations Act 2016 – leave given for the Respondents to be represented by a lawyer in further conciliation proceedings before the Queensland Industrial Relations Commission |
LEGISLATION: | Industrial Relations Act 2016, s 530 |
Reasons for Decision
Mr Jose Alvarado ('the Complainant') is employed by the State of Queensland ('the First Respondent') as a Patient Support Officer in the Metro North Hospital and Health Service. The Second Respondent is employed by the First Respondent as a Supervisor in the Metro North Hospital and Health Service.
On 12 May 2022, the Complainant made a complaint to the Queensland Human Rights Commission ('the QHRC') alleging that he was the subject of unlawful discrimination by the Respondents, in the work area, in contravention of the Anti-Discrimination Act 1991 ('the Complaint').
On 1 February 2024, the QHRC referred the Complaint to this Commission.
The QHRC characterised the Complaint as being one of sexual harassment and unlawful direct and indirect discrimination in the work area on the basis of the Complainant's impairment. The QHRC also identified, within the Complaint, allegations of a limitation of a human right of the Complainant under the Human Rights Act 2019.
On 29 February 2024, the First and Second Respondents made an application in existing proceedings for leave to be granted to them, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), to be represented by a lawyer in the proceeding ('the Respondents' application'). That application was supported by an affidavit of a solicitor employed by the law firm for which the Respondents seek leave. The application was also supported by written submissions.
The Complaint has been allocated to me for conciliation. Following an initial conciliation conference conducted on 6 March 2024 to discuss matters of procedure with the parties, I issued a Directions Order on the same day for the parties to file and serve statements of facts and contentions, to complete discovery, and to then participate in a further conciliation conference before me on 5 July 2024.
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.
For the reasons that follow, I will give leave to the Respondents to be represented by a lawyer pursuant to s 530(1)(c) of the IR Act at the further conciliation conference to be conducted by me on 5 July 2024.
The effect of s 530(1)(c) 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) under the Anti-Discrimination Act 1991, the Commission gives leave.
Section 530(4) of the IR Act provides:
(4) An industrial tribunal may give leave under subsection (1) only if-
(a)it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
(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
(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.
The basis of the Respondents' application is that the Commission should give leave for them 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 and that, having regard to s 530(4)(b) and (c) of the IR Act, it would be fair, in all the circumstances, to allow the Respondents to be represented by a lawyer.
By further Directions Order dated 6 March 2024, I directed the Complainant, by 4.00 pm on Wednesday, 20 March 2024, to file and serve written submissions in reply to the Respondents' application. I further directed that unless otherwise determined, the Respondents' application would be determined on the papers.
The Complainant has filed no such submissions.
There are three reasons why I will give leave for the Respondents to be legally represented at the further conciliation conference before me on 5 July 2024.
First, the Complainant alleges that the Second Respondent sexually harassed him and that the Second Respondent directly and indirectly discriminated against him on the basis of his impairment. There is also the contention that the Second Respondent limited his human rights in respect of his right to recognition and equality before the law. I assume that the First Respondent is said to be vicariously liable for the alleged conduct of the Second Respondent. In these circumstances, there is some complexity to the matters raised in the Complaint. Therefore, in my opinion, giving leave to the Respondents to be represented by a lawyer would enable the conciliation conference, to be held on 5 July 2024, to be dealt with more efficiently.
Secondly, the Second Respondent is an individual who, on the evidence before me, is a person who does not have any legal or industrial expertise or experience in proceedings such as the present. In those circumstances, it would be unfair not to allow the Second Respondent to be represented by a lawyer at the further conciliation conference because she would be unable to represent her interests.
For the above reasons, my discretion to give leave to the Respondents to be represented by a lawyer is enlivened.
Thirdly, because the Complainant filed no submissions in response to the Respondents' application to be represented by a lawyer, there is no reason I should not exercise my discretion in favour of the Respondents.
If the matter is not resolved in conciliation, and there is a final hearing, that will be before another Member of the Commission. There is nothing that prevents the Respondents from making a further application for leave to be represented by a lawyer if that stage is reached. That will be a matter for that Member of the Commission.
Conclusion
For the reasons I have given, I give leave to the First and Second Respondents to be represented by a lawyer at the further conciliation conference to be held on 5 July 2024.
Order
I make the following order:
Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the Respondents are given leave to be represented by a lawyer at the further conciliation conference on 5 July 2024.
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