McCarthy v State of Queensland

[2011] QCAT 139

CITATION: McCarthy v State of Queensland [2011] QCAT 139

PARTIES:	Fiona McCarthy
v
State of Queensland

APPLICATION NUMBER:   ADL130-10

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 28 February 2011

DELIVERED AT: Brisbane

ORDERS MADE:      Leave is granted for the parties to be legally represented in the proceedings.

CATCHWORDS: 

ANTI-DISCRIMINATION – legal representation – interests of justice for representation established

Queensland Civil and Administrative Tribunal Act 2009, s 43

APPEARANCES and REPRESENTATION (if any):

The application for leave for legal representation was determined on the papers in the absence of the parties.

REASONS FOR DECISION

1. On 24 November 2010 the Anti-Discrimination Commission Queensland referred a complaint by Fiona McCarthy to the tribunal.  The respondent to the complaint is the State of Queensland.  The complaint makes allegations of unlawful discrimination based on the attributes of impairment and relationship status and arises from conduct in the workplace. 

2. Particulars of the complaint are that Ms McCarthy was injured in her employment on 7 January 2010.  She took sick leave and lodged a claim for workers compensation.  Her fixed term employment contract lapsed and she became categorised as a causal employee.  Ms McCarthy alleges that she was treated less favourably than other employees and complains that the action taken by her employer was tantamount to a dismissal under her contract.

3. The complaint raises a second element, namely that the employer had unlawfully discriminated against her in the practices implemented in the pay office in that prioritising of certain pay matters was done by reference to a person’s marital status.

4. Each of the parties applied for leave to be legally represented in the proceedings.  Under the Queensland Civil and Administrative Tribunal Act 2009 parties are expected to represent themselves in proceedings before the tribunal. However leave can be granted by the tribunal for a party to be represented if required by the interests of justice.[1]   

   [1] See section 43 of the Queensland Civil and Administrative Tribunal Act 2009.

5. The facts in the complaint are not complex.  However the legal issues in this case have some specific complexity in that the tribunal will be required to consider the legislative and policy framework of this particular workplace around the appointment and extension of temporary staff and case law about temporary employment contracts.  It is likely that some of the witnesses for the employer will have an adequate understanding of these legal and policy issues but it is unlikely that Ms McCarthy would have such an understanding.

6. It would assist the tribunal in this case to come to the correct determination on these legal issues to have the benefit of input from legal representatives of the parties.  The tribunal is required to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[2]  The tribunal considers that it would be assisted in the resolution of this complaint, at the compulsory conference stage and if necessary at the final hearing, by concise and relevant legal argument to refine the issues. 

   [2] See section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009.

7. It is in the interests of justice that the tribunal deals with this complaint in an economical manner.  In this case that object can be best achieved by granting leave for the parties to be legally represented.