Lloyd v Queensland Rail Limited
[2023] QIRC 155
•30 May 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lloyd v Queensland Rail Limited and Anor [2023] QIRC 155 |
PARTIES: | Lloyd, Michael v Queensland Rail Limited and Bolton, William |
CASE NO.: | AD/2023/23 |
PROCEEDING: | Application in existing proceedings for the Respondents to be represented by a lawyer |
| DELIVERED ON: | 30 May 2023 |
MEMBER: HEARD AT: | Merrell DP On the papers |
ORDER: | The application made by the First and Second Respondents for them 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 performed work for the First Respondent as a track worker – Complainant has an internal defibrillator – First Respondent determined that the Complainant could not perform the inherent requirements of his role and determined that, as from 17 January 2022, the Complainant would become a Health Restricted Employee such that if he was not appointed into an alternative role within three months his employment with the First Respondent would conclude on 17 April 2022 – 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 also having regard to matters of fairness as referred to in s 530(4) of the Industrial Relations Act 2016 – Commission not persuaded that giving such leave to the Respondents would enable the conciliation proceedings to be dealt with more efficiently, having regard to the complexity of the matter and no present unfairness arises by leave not being given to the Respondents to be represented by a lawyer – application in existing proceedings for the Respondents to be represented by a lawyer dismissed |
LEGISLATION: | Industrial Relations Act 2016, s 530 |
Reasons for Decision
Mr Michael Lloyd, as best as I understand the current circumstances, is employed by Queensland Rail Limited ('the First Respondent') and had been employed in the position of track worker. Mr Lloyd has an internal defibrillator inserted into his chest.
By letter dated 14 January 2022 from Mr William Bolton, Senior Manager Track & Civil of the First Respondent ('the Second Respondent'), Mr Lloyd was advised that a Certificate of Fitness from Sonic Health Plus dated 16 December 2021 confirmed that Mr Lloyd was unable to perform the inherent requirements of his role, that he was no longer capable of safely performing his position due to being deemed permanently unfit for all Rail Safety Duties, but that he was fit for non-safety critical work in respect of which he must be accompanied. The Second Respondent then advised Mr Lloyd that the First Respondent's South-East Queensland Assets management considered Mr Lloyd's permanent restrictions and that no reasonable adjustments could be made to accommodate his restrictions on an ongoing basis nor were there any alternative roles within which his above-mentioned restrictions were able to be accommodated.
As a consequence, the Second Respondent advised Mr Lloyd that on 17 January 2022, he would become a Health Restricted Employee and that if he was not appointed into an alternative role within a three month job search period, his employment with the First Respondent would conclude on 17 April 2022.
On 7 March 2022, Mr Lloyd made a complaint to the Queensland Human Rights Commission ('the QHRC') alleging that he was subject to unlawful discrimination in the work area in contravention of the Anti-Discrimination Act 1991 ('the complaint').
On 22 March 2023, the QHRC referred the complaint to this Commission.
The QHRC characterised the complaint as being one of unlawful direct and indirect discrimination in the work area on the basis of Mr Lloyd's age and impairment.
On 4 April 2023, 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').
Mr Lloyd, who as best as I understand it, was and is represented by the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch ('the RTBU'), has not filed a response to the Respondents' application.
The complaint has been allocated to me for conciliation. At the present time, I have not issued directions orders for the parties to file and serve statements of facts and contentions and to complete discovery. These are the kinds of directions orders made, in matters such as the present, prior to holding a conciliation conference.
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 decline to give leave to the Respondents to be represented by a lawyer pursuant to s 530(1)(c) of the IR Act.
The Respondents' application
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 way of summary, the particulars of that contention are:
·there is some factual complexity relating to the allegations arising from the dispute regarding the impact of Mr Lloyd's medical condition on his ability to fulfil the inherent requirements of his role; and that to determine the disputed question of facts, there will be a number of witnesses, including Senior Executives of the First Respondent and expert medical witnesses, who will be required to give evidence, who will be cross-examined and where the Commission may be required to make findings of credit;
·questions of law also arise because discrimination on the basis of impairment is part of the complaint, and such complaints are inherently legally complex and technical;
·having regard to the questions of fact and law that will need to be determined, the proceedings can be dealt with more efficiently by the participation of lawyers, in respect of which the Respondents would be represented by a single legal team;
·the involvement of lawyers in a compulsory conference will also allow the parties to effectively conciliate the matter in circumstances where all options for the resolution of the matter are explored; and
·the giving of leave for the Respondents to be represented by lawyers would be fair because:
- Mr Lloyd has the benefit of having engaged an experienced industrial officer from the RTBU;
- the First Respondent, through its lawyers, is bound by the Model Litigant Principles; and
- the Second Respondent has no experience in industrial law or advocacy and any liability of the Second Respondent is likely to result in the First Respondent being vicariously liable for any such liability, such that without the granting of leave as sought, the First Respondent would be required to rely on the unrepresented Second Respondent to defend the claims made by Mr Lloyd for which the First Respondent may be ultimately liable.
The Respondents then submitted that the Commission's discretion to grant them leave to be represented by a lawyer is triggered and that the discretion should be exercised in their favour because there are no competing considerations capable of outweighing the importance of ensuring proceedings are conducted as efficiently as possible and not in an unfair way.
I am not persuaded by the Respondents' submissions that, at the present time, I should grant the Respondents' application.
Mr Lloyd's complaint has been allocated to me for conciliation. As I stated earlier, I have yet to direct the parties to file and serve statements of facts and contentions and to complete discovery which are the ordinary steps taken prior to the holding of a conciliation conference in respect of matters such as the present.
I accept that, should the matter proceed to a final hearing, there may well be disputed issues of fact and complex issues of law that may need to be determined to ultimately consider whether or not the Respondents have contravened the Anti-Discrimination Act 1991, and, if so, what orders should be made. I also accept that giving leave to the Respondents to be represented by lawyers would enable the resolution of those disputed matters to be dealt with more efficiently. However, those matters do not, on their own, give rise to a conclusion that legal representation would enable the proceedings to be dealt with more efficiently at the present time.
The First Respondent is a large organisation. At the conciliation conference, the First Respondent would be represented by its own employees. There was no submission made by the First Respondent that if it were not given leave to be represented by a lawyer at the conciliation conference, its own employees would not represent the Second Respondent at that conference.
In addition, I do not accept, as a general or universal proposition, the Respondents' submission that the involvement of lawyers at the conciliation conference would allow the parties to effectively conciliate the matter in circumstances where all options for the resolution of the matter are explored. Each case must be considered on its own facts. However, in the present case, all options for the resolution of the matter may be explored at the conciliation conference, with the assistance of the Commission, by the First and Second Respondents being represented by the employees of the First Respondent and with Mr Lloyd being represented by his trade union. Furthermore, such representation of the parties, in conciliation, would not result in any unfairness to any party.
The issues raised by the Respondents about legal representation enabling the efficient conduct of the proceedings and promoting fairness may well be persuasive in respect of a consideration of the Respondents being legally represented at the trial of Mr Lloyd's complaint if it is not resolved in conciliation.
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. If such an application is made, whether or not such leave should be granted will be a matter for the Member of the Commission who conducts the trial of Mr Lloyd's complaint.
Conclusion
For the reasons I have given, I do not give leave to the First and Second Respondents to be represented by a lawyer at the present stage of Mr Lloyd's complaint before the Commission.
Order
I make the following order:
The application made by the First and Second Respondents for them 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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