Navaratnam v Ferry
[2023] QIRC 154
•30 May 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Navaratnam v Ferry and Anor [2023] QIRC 154 |
PARTIES: | Navaratnam, Kathiravelu v Ferry, Anthony and State of Queensland (Department of Employment, Small Business and Training) |
CASE NO.: | AD/2023/7 |
PROCEEDING: | Application in existing proceedings |
| 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 made complaint to the Queensland Human Rights Commission against the Respondents alleging contraventions of various provisions of the Anti‑Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission – complaint yet to be the subject of conciliation before the Commission – application in existing proceedings by the First and Second Respondents for leave to be given to them, pursuant to s 530(1)(c) of the Industrial Relations Act 2016, to be legally represented in the proceedings – Complainant opposes First and Second Respondents' application for leave to be legally represented – whether leave should be given to First and Second Respondents to be legally represented having regard to s 530(4)(a) and (c) of the Industrial Relations Act 2016 – application in existing proceedings for the First and Second Respondents to be represented by a lawyer dismissed |
LEGISLATION: | Human Rights Act 2019, s 15 Industrial Relations Act 2016, s 530 |
Reasons for Decision
On 12 August 2021, Dr Kathiravelu Navaratnam ('the Complainant') made a complaint to the Queensland Human Rights Commission ('QHRC') alleging that Mr Anthony Ferry ('the First Respondent') and the State of Queensland, through the Department of Employment, Small Business and Training ('the Second Respondent') had contravened various provisions of the Anti-Discrimination Act 1991 ('the AD Act').
On 3 February 2023, the complaint was referred to this Commission.
The proceedings have been allocated to me for conciliation.
I have yet to direct the parties to file and serve their statements of facts and contentions and to disclose all directly relevant documents for the purpose of conducting the conciliation.
By application filed on 15 February 2023, the First and Second Respondents made application for leave to be given to them, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), to be legally represented before this Commission ('the Respondents' application').
On 14 March 2023, the Complainant filed and served submissions opposing the Respondents' application.
This is my decision about the Respondents' application.
The legislative provisions
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 AD Act, 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 Complaint
As best as I can make out from the Complainant's complaint to the QHRC, the Complainant is employed by the Second Respondent in the position of Senior Lead Auditor.
The Complainant's complaint, as referred by the QHRC to this Commission, alleges that the Complainant has been the subject of unlawful discrimination in the work area on the basis of his age and race and the Complainant's human right to recognition and equality before the law as provided by s 15 of the Human Rights Act 2019.
In the formal complaint made to the QHRC, the Complainant also alleges that he was asked questions or asked to supply information which may lead to discrimination against him, and that he was the subject of unlawful victimisation and unlawful public vilification on the basis of his race.
The complaint of age discrimination arises out of allegations that at a meeting on 11 December 2020, the First Respondent, who, as I understand it, was the Manager of the Complainant's work unit, made derogatory remarks to the Complainant about his age and his memory. It seems that the alleged derogatory remarks made by the First Respondent to the Complainant at this meeting is also the basis of the complaint that the Complainant was asked questions which may lead to discrimination against him.
The complaint of racial discrimination arises out of an allegation that the Complainant received an email, from an employee of the Second Respondent, on 13 September 2019 which contained a picture of a black monkey which the Complainant alleges characterised him as a black monkey. It also seems to be the case that the allegation that the Complainant received that email is the basis of his complaint that he was the subject of unlawful public vilification on the basis of his race.
As best as I can make out, the Complainant's complaint of alleged unlawful victimisation arises out of his requests of the Second Respondent to investigate the complaints he made in respect of the above-mentioned allegations. Indeed, from the material contained in the referral from the QHRC to this Commission, it seems to be obvious that the Second Respondent did undertake some investigations about some of the matters the subject of the allegations contained in the complaint.
The Respondents' application
By way of summary, the Respondents' contend that leave should be given to them to be represented by a lawyer because:
·having regard to s 530(4)(a) of the IR Act, there is significant factual and legal complexity in the complaint, namely:
- a contention about which aspects of the Complainant's complaint were accepted and referred to the Commission;
- there is an array of factual disputes which are central to the complaint; and
- the complaint alleges numerous breaches of the AD Act, each with its own potential complex legal test and, in particular, the complaint does not specify whether direct or indirect discrimination is alleged, or both;
·if leave is granted, the Respondents' legal representatives would assist the Commission to efficiently deal with the complaints by narrowing the matters at issue, preparing concise and relevant evidence and submissions, testing the evidence before the Commission by examining witnesses and aiding the Commission to identify and apply legal principles; and
·the Second Respondent is bound by the Model Litigant Principles in instructing its representatives who have significant experience in assisting the Second Respondent in respect of other workplace complaints and public service appeals made by the Complainant to the Commission, including that they appeared, with leave, for the Respondents in the conciliation conference before the QHRC.
For these reasons, the Respondents contend that the Commission's discretion to give them leave to be represented by a lawyer is triggered. In addition, in relation to the First Respondent, the Respondents contend that the Commission's discretion to give leave to him to be represented by a lawyer is triggered by the application of s 530(4)(c) of the IR Act.
The Respondents further contend that the discretion should be exercised in their favour because:
·allowing them to be legally represented will assist the Commission to efficiently deal with the proceedings;
·as uncapped damages can be awarded by the Commission in such a proceeding, the Respondents should be afforded the opportunity to present the most cogent legal defence available;
·the First Respondent has no legal training or relevant litigation experience; and
·the Second Respondent does not oppose the Complainant being legally represented, and if the Complainant is not legally represented, then there is no reason to deny the Respondents legal representation.
The Complainant's submissions
The Complainant opposes the granting of leave to the Respondents to be legally represented.
The Complainant's reasons are:
·he cannot afford legal representation and he cannot fairly and reasonably represent himself against professional legal representation; and
·he alleges that his physical and mental health has been deteriorating due to unresolved issues concerning his employment by the Second Respondent.
Leave should not be given to the Respondents to be legally represented at the present time
As referred to earlier in these reasons, the Complainant's complaint, as referred to the Commission from the QHRC, has been referred to me for conciliation.
While I accept that many of the reasons advanced by the Respondents for them to be given leave to be represented by a lawyer are meritorious, they are meritorious in the context of a trial of the Complainant's complaint before the Commission.
My task, upon each of the parties filing and serving their statement of facts and contentions and completing disclosure, is to try to assist the parties, by way of conciliation, to reach a mutually agreeable resolution of the complaint.
The specific matters referred to by the Respondents, which they contend would enable the proceedings to be dealt with more efficiently, do not necessarily lend themselves to the efficient conduct of the proceedings in the context of the conciliation of the Complainant's complaint. That is to say, it is not immediately apparent that the matters referred to by the Respondents in paragraph [16] of these reasons will enable the proceedings to be dealt with more efficiently by way of conciliation.
Furthermore, while there may be matters alleged in the Complainant's statement of facts and contentions that were not the subject of any complaint accepted by the QHRC, those matters will need to be determined by the Member of the Commission to whom the trial of the Complainant's complaint is allocated.
I acknowledge that the First Respondent is not legally trained. However, given that a conciliation conference is a private and full and frank discussion about the issues in dispute as disclosed by the statement of facts and contentions, and given the nature of the allegations made against the First Respondent as contained in the complaint, which go to what he allegedly said to the Complainant about the Complainant's age and memory, I am not persuaded that it would be unfair not to allow the First Respondent to be represented in the conciliation conference, having regard to fairness between the First Respondent and other parties in the proceedings. Indeed, there was no submission made by the Respondents that if leave were not granted to them to be represented by a lawyer, the First Respondent would not be represented, at any point in the proceedings, by officers of the Second Respondent.
For these reasons, I am not persuaded that, at the present time, my discretion to give leave to the Respondents to be represented by a lawyer is triggered. Even if I am wrong about that, for the reasons I have also given above, I am not persuaded that, at the present time, I should exercise my discretion in favour of the Respondents to be represented by a lawyer.
If I am unable to assist the parties to resolve the matter at the conciliation conference, the Respondents may make a further application, for leave for them to be represented by a lawyer, to the Member of the Commission who will hear the trial of the complaint.
Conclusion
For the reasons I have given, I do not give leave for the First and Second Respondents 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 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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