Wanninayake v State of Queensland (Department of Natural Resources and Mines)
[2014] QIRC 79
•8 May 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Wanninayake v State of Queensland (Department of | ||
| Natural Resources and Mines) [2014] QIRC 079 | |||
| PARTIES: | Dushanthi Wanninayake | ||
| (Applicant) | |||
| v | |||
| State of Queensland (Department of Natural Resources and Mines) | |||
| (Respondent) | |||
| CASE NO: | B/2014/17 | ||
| PROCEEDING: | Application for Legal Representation | ||
| DELIVERED ON: | 8 May 2014 | ||
| HEARING DATE: | 8 May 2014 | ||
| MEMBER: | Industrial Commissioner Neate | ||
| ORDERS : |
|
represented by a lawyer
CATCHWORDS: | UNFAIR DISMISSAL - APPLICATION FOR LEGAL REPRESENTATION - Industrial Relations Act 1999 (Qld) - Whether Respondent can be represented by a lawyer under s 319(2)(ba)(ii) Industrial Relations Act 1999 (Qld) - Application opposed - Commission's discretion - Factors to be considered by the Commission in deciding whether to allow legal representation - Circumstances of the case - Leave granted to be legally represented. |
CASES: | Renee Maree Le Pierres and Andrew Herzfeld Pty Ltd (B/1999/1553) - decision |
| Applicant v Respondent [2014] FWC 2860 | |
| APPEARANCES: | Ms D. Wanninayake, Applicant, in person Mr J. Merrell, Counsel, instructed by Crown Solicitor, Respondent |
Report on Decision (as edited)
In giving his decision from the Bench on 8 May 2014, Industrial Commissioner Neate stated:
"On 28 November 2013, Ms Dushanthi Wanninayake, the Applicant, lodged an Application for Reinstatement with the Industrial Registrar under s 74 of the Industrial Relations Act 1999 (Qld).
The respondent employer named in the application is the Department of Natural
Resources and Mines.
The proceeding is numbered TD/2013/109.
In her application, the Applicant seeks orders including:
first, reinstatement to her former position, that is as a Senior Chemist Classification PO-4 (or as nearly as possible), without prejudice to her former conditions of employment and remuneration; and
second, payment by the respondent employer to the Applicant of remuneration lost between the date dismissal took effect (11 November 2013) and the date of reinstatement.
The Applicant also seeks other orders.
In the early stages of the application for reinstatement, Ms Katrina Hart of the Advice and Litigation Group, In-house Legal, of the Department of Natural Resources and Mines was
the lawyer for the respondent employer. A Lawyer’s Notice of Address for Service dated 7
March 2014 was filed with the Industrial Registrar and provided to the Applicant by email on 10 March 2014.
For reasons set out in her affidavit dated 5 May 2014, Ms Hart explains that in early March 2014 she was provided with instructions to act on behalf of the Department in matter TD/2013/109 by Ms Jenny Gribaudo. Subsequently in late March it was determined that Crown Law would be briefed to act on behalf of the Department in the matter.
A Notice of Change of Lawyer was filed with the Industrial Registrar on 28 March 2014 and was sent to the Applicant by email on that date.
That notice states that Crown Law now acts for the respondent in place of Katrina Hart,
and that the respondent lawyer’s name is GR Cooper, Crown Solicitor.
On 12 March 2014, the Commission made directions in respect of the conduct of the
Application, including that it be heard for five days between 30 June and 4 July 2014.
On 29 April 2014, Ms Gribaudo, Manager, Employee Relations Unit, Human Resources and Communications Corporate, Department of Natural Resources and Mines, filed with the Industrial Registrar an application for the Respondent employer to be represented by a lawyer in the application for reinstatement proceedings, matter TD/2013/109.
That application seeks:
first, an order from the Queensland Industrial Relations Commission that the Respondent may be represented by a lawyer in accordance with section 319(2)(ba)(ii) of the Industrial Relations Act on the basis that there are special circumstances that make it desirable for the respondent to be legally represented; and
second, any other orders the Commission deems relevant in the circumstances.
The application for legal representation is numbered B/2014/17.
By order dated 30 April 2014, this application is allocated to me to hear and determine.
The matter was listed to be heard at 8:30 am on Thursday 8 May 2014.
The only issue to be decided on this occasion is whether the respondent employer should be permitted to be represented by a lawyer in the main proceeding, that is, the application for reinstatement.
The issue has come before a Commissioner because the relevant parts of section 319 of the Industrial Relations Act govern the types of representation, including legal representation, which parties to proceedings before the Commission may have.
Subsection 319(1) of the Act provides:
“(1) In proceedings, a party to the proceedings, or a person ordered or permitted to
appear or to be represented in the proceedings, may be represented by—
(a) an agent appointed in writing; or (b)
if the party or person is an organisation—an officer or member of the organisation.”
Subsection 319(2) of the Act provides in paragraph (ba) that “The party or person may be
represented by a lawyer if, and only if for proceedings before the commission not
mentioned in paragraph (b)” either:
all parties consent; or on application by a party or person—
(A)
the Commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances that make it desirable for the party or person to be legally represented; or
(B) the Commission is otherwise satisfied that it is desirable for the party or
person to be legally represented.
The Applicant in the reinstatement proceeding does not consent to the employer respondent being represented by a lawyer.
The question is whether the Commission is satisfied that it is desirable for the respondent employer to be legally represented in these proceedings.
Before the hearing on 8 May 2014, the Commission was provided with various documents in relation to the application for legal representation. These comprise the following documents from the respondent employer:
the application for legal representation filed on 29 April 2014 the affidavit of Ms Katrina Hart filed on 5 May 2014 written submissions filed on behalf of the State of Queensland a copy of the letter dated 7 November 2013 from the Mr Paul Harrison, Deputy Director-General, Mine Safety and Health, in the respondent employer, to the Applicant advising her that she would be dismissed from the Department effective from the date of receipt of the letter extracts from the Public Service Act 2008 and the Public Service Regulation
2008 relevant to the dismissal a copy of a decision of Vice President Linnane in Renee Maree Le Pierres and
Andrew Herzfield Pty Ltd (No B1553 of 1999) dated 11 February 2000 a decision of Deputy President Sams of the Fair Work Commission in
Applicant v Respondent [2014] FWC 2860, dated 1 May 2014.
The Applicant provided a written submission for this proceeding and various attachments numbered DWO3 to DWO9 which include:
an affidavit affirmed on 6 May 2014 and annexures to it, being a copy of the application for legal representation which is the subject of these proceedings and copies of email correspondence between the Applicant and Ms Hart on 11 March 2014; and a copy of a letter from the Applicant to Vice President Linnane, incorrectly
dated 22 April 2013 (but actually dated 22 April 2014).
Subsection 319(4) of the Industrial Relations Act provides, in effect, that in deciding under subparagraph 319(2)(ba)(ii) of the Act whether the Commission is satisfied that it is desirable for the respondent employer to be legally represented in these proceedings, the Commission may consider, for example, the following:
(a) the amount claimed in the proceedings, if any; (b) the nature and complexity of the matter; (c) the nature of the evidence to be adduced; (d) the cross-examination likely to be required; (e) the capacity of the party or person to represent himself or herself; (f) the questions of law likely to arise; (g)
whether the duration or cost of the proceedings will be decreased or increased if the party or person is represented.
At the hearing, the Applicant for reinstatement appeared in person. She was not legally represented.
The Respondent employer was represented, with leave of the Commission, by Mr Merrell of counsel.
In oral submissions in relation to the application for legal representation, the respondent employer contended, in essence, that:
first, having regard to the nature of the unfair dismissal proceedings brought by the Applicant and the evidentiary issues and questions of law that will arise in relation to them, it is important to have legal representation; and
second, there is no employee in the Employee Relations Unit of the Department that has experience in managing a complex unfair dismissal matter where the matter has proceeded to the litigation stage.
The Applicant for reinstatement contended, in summary:
first, that she is confident enough to represent herself at the hearing, thus minimizing the cost and improving the efficiency and cost effectiveness to both the parties, potentially shortening the proceedings from the allocated five days second, that she has already clearly and concisely addressed the two issues raised against her in relation to the termination of her employment which she described as “simple and straightforward;" and third, as she will not be represented by a lawyer and will have no witnesses other than herself, she does not see any relevance for legal representation for the employer respondent.
I have considered carefully the oral submissions of the parties and the documents provided to the Commission by the parties that are relevant to the application for legal representation.
As each party has all of the documents mentioned earlier, I do not need to quote from them or summarise them in any detail for the purpose of deciding the application for legal representation.
A decision under the relevant paragraph of subsection 319(2) of the Industrial Relations
Act is discretionary.
It is apparent from the Application in TD/2013/109 and the submissions made in relation to the application for legal representation, that most if not all of the matters listed in subsection 319(4) of the Industrial Relations Act, which I quoted earlier, are relevant to the present application. The fact that five days have been allocated for hearing the matter indicates the substantial volume of evidence that the parties intend to adduce, and may also indicate something of the complexity of the proceedings. Clearly there is a lot at stake, at least so far as the Applicant is concerned.
As Vice President Linnane pointed out in Le Pierres v Herzfeld Pty Ltd, there are clearly questions of law to be determined in unfair dismissal cases. Legal representation can assist the Commission in relation to matters involving points of law, and skilful cross- examination of witnesses can only assist the Commission in determining the matters it has to decide. In her view, to deny legal representation in circumstances where a question of law will need to be determined and where extensive or skilful cross-examination is desirable, is to preclude an effective investigation of the matters at the heart of such a case.
That said, it is not mandatory that parties be legally represented in proceedings such as these. Indeed, section 391 of the Industrial Relations Act would not exist if legal representation was required. That section proceeds on the basis that parties will not be represented by lawyers (unless they all agree to it or the Commission is satisfied that legal representation is desirable). The section also provides that a party may be represented by an agent or an officer or member of the organisation, such as a union or employer organisation.
However, the decision of Vice President Linnane and the more recent decision of Deputy President Sams of the Fair Work Commission in Applicant v Respondent, dated 1 May 2014, point to both the utility of having at least one party legally represented and to the trend in bodies such as the Commission to exercise their discretionary powers to permit such representation.
The Commission has considerable experience in presiding over hearings at which one of the parties represents themselves. Such proceedings can involve challenges for both the self-represented litigant and the presiding Commissioner, as well as for the other party. Such challenges were exemplified at times in the hearing of the present application. Competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real issues of fact and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced (whether by examination in chief or cross examination and by the tendering of relevant documents), and that submissions are confined to the matters which the Commission must decide.
The fact that one party, either by choice or circumstances, is not represented by a lawyer is no reason to deny the other party or parties of legal representation, particularly in significant and potentially complex cases. That point is strengthened when, as in this case, the respondent party is meant to act as a model litigant in accordance with Model Litigant Principles.
To the extent that a self-represented party considers it likely that they will be at some disadvantage in proceedings where the other party is, or parties are, represented by lawyers, the self-represented party should proceed on the basis that the Commission will attempt to ensure that the proceedings are conducted fairly within the time allotted for the hearing.
I am satisfied that, having regard to the matter the proceedings relate to, there are special circumstances that make it desirable for the respondent employer to be legally represented. Consequently, in matter B/2014/17, the application is successful, and I grant leave for the respondent employer to be represented by a lawyer."
7