Grange v Cairns and District Child Care Development Association Inc. t/a Family Day Care Cairns
[2023] QIRC 210
•25 July 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Grange v Cairns and District Child Care Development Association Inc. t/a Family Day Care Cairns [2023] QIRC 210 |
PARTIES: | Grange, Erin v Cairns and District Child Care Development Association Inc. t/a Family Day Care Cairns |
CASE NO: | AD/2023/60 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 25 July 2023 |
MEMBER: HEARD AT: | Merrell DP On the papers |
ORDER: | The application made by the Respondent to be given leave to be represented by a lawyer, pursuant to s 530(1)(c) of the Industrial Relations Act 2016, is dismissed. |
| CATCHWORDS: | HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – APPLICATION FOR LEAVE TO BE GIVEN TO BE REPRESENTED BY A LAWYER – Complainant made complaint to the Queensland Human Rights Commission against the Respondent alleging pregnancy discrimination in contravention of the Anti-Discrimination Act 1991 – complaint accepted by the Queensland Human Rights Commission – complaint referred to the Queensland Industrial Relations Commission – complaint yet to be the subject of conciliation before the Queensland Industrial Relations Commission – application in existing proceedings by the Respondent for leave to be legally represented in the proceedings pursuant to s 530(1)(c) of the Industrial Relations Act 2016 – application made 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 that it would be unfair to refuse legal representation as the Respondent is unable to represent itself – Commission not persuaded that giving such leave to the Respondent would enable the conciliation proceedings to be dealt with more efficiently, having regard to the complexity of the matter, and that no present unfairness arises by leave not being given to the Respondent to be represented by a lawyer – application in existing proceedings for the Respondent to be represented by a lawyer dismissed |
LEGISLATION: | Industrial Relations Act 2016, s 530 |
Reasons for Decision
Introduction
Ms Erin Grange ('the Complainant') made a complaint to the Queensland Human Rights Commission ('QHRC') on 10 October 2021 claiming pregnancy discrimination in the area of work.
The Complainant, in her complaint to the QHRC, stated that she had been engaged by the Respondent, as a sub-contracting day carer, from 21 September 2020 until her termination on 19 February 2021.
In October 2020, the Complainant disclosed to the Respondent that she was pregnant. The Complainant alleges her termination was because of her pregnancy.
The Respondent, in its response to the QHRC complaint, contends that the Complainant's contract was terminated solely because of performance issues and not because of her pregnancy.
On 20 April 2023, the QHRC made a decision to accept the complaint.
The matter was subsequently referred to the Queensland Industrial Relations Commission ('the Commission') on 26 June 2023.
This matter has been allocated to me for conciliation.
On 4 July 2023, the Respondent filed an application for leave to be represented by a lawyer pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act') in the proceedings. An affidavit by Ms Cheryl McAlister, the President of the Respondent, in support of the application, was filed on the same day.
The question for me to determine is whether, in the present circumstances, I should give leave to the Respondent to be represented by a lawyer pursuant to s 530(1)(c) of the IR Act.
No application has been made by the Complainant for her to be given leave to be represented by a lawyer or, to the extent an agent is permitted to represent a party under the IR Act, for leave to be represented by an agent.
The Respondent's application
The relevant effect of s 530(1)(c) of the IR Act is that a party to 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 Respondent asserts in its application that:
·leave should be granted to allow it to be legally represented on the basis that it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; and
·it would be unfair not to allow the Respondent to be legally represented because it is unable to represent itself.
Ms McAlister deposes that:
·the Respondent does not employ a specialist human resource staff member or in-house lawyer; and
·the Respondent has never been the subject of a complaint before this Commission and has no meaningful experience in matters of this nature.
It is not immediately apparent that the matters referred to by the Respondent, forming the basis of its application for leave to be represented by a lawyer, lend themselves to the efficient conduct of the proceedings in the context of a conciliation of the Complainant's complaint. No issue of unfairness arises because no application has been made for the Complainant to be represented by any person in the conciliation conference. The matters referred to by the Respondent may well be persuasive about whether it should be given leave to be represented by a lawyer should the matter proceed to a hearing.
The Respondent may make a further application, for leave to be legally represented, to the Member of the Commission who will hear the trial of the complaint should the complaint not be resolved by conciliation.
Conclusion
For the reasons I have given, I do not give leave for the Respondent to be represented by a lawyer at the present stage of the Complainant's complaint.
Order
I make the following order:
The application made by the Respondent to be given leave to be represented by a lawyer, pursuant to s 530(1)(c) of the Industrial Relations Act 2016, is dismissed.
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