Wayne Gamble v T.P. Turner Pty Ltd and Robert Turner
[2018] QIRC 14
•15 February 2018
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Wayne Gamble v T.P. Turner Pty Ltd and Robert Turner [2018] QIRC 014 |
PARTIES: | Gamble, Wayne v T.P. Turner Pty Ltd and Turner, Robert |
CASE NO: | AD/2017/42 |
PROCEEDING: | Application to be legally represented |
DELIVERED ON: | 15 February 2018 |
HEARING DATE: | 18 January 2018 |
HEARD AT: | Brisbane |
MEMBER: | Vice President Linnane |
| ORDER: | Leave is granted for the Applicant to be legally represented in AD/2017/42. |
| LEGISLATION: | Anti-Discrimination Act 1991 |
| CATCHWORDS: | ANTI-DISCRIMINATION LAW – INDUSTRIAL LAW - Application to be legally represented in a matter filed pursuant to Anti-Discrimination Act 1991 – matter involves direct discrimination, indirect discrimination and vicarious liability based on the attribute of impairment – application granted. |
| APPEARANCES: | Mr M. Heffernan of Supportah Operations Pty Ltd t/a Discrimination Claims for the Applicant. |
Decision
Wayne Gamble (Applicant) filed an application in the Industrial Registry on 17 January 2018 for leave to be legally represented in application AD/2017/42 lodged pursuant to the Anti-Discrimination Act 1991. Section 530(c) of the Industrial Relations Act 2016 provides that a party to an Anti-Discrimination Act 1991 proceeding may be represented by a lawyer if the Queensland Industrial Relations Commission (Commission) gives leave for that to occur.
This Application seeks to have Worker Law in conjunction with Supportah Operations Pty Ltd t/a Discrimination Claims (Discrimination Claims) represent the Appellant in his Anti-Discrimination claim before the Commission. Discrimination Claims represented the Applicant in his complaint lodged with the Anti-Discrimination Commission Queensland which is now the subject of AD/2017/42 following referral of the matter to the Commission.
Mr Miles Hefferman, a Director of Discrimination Claims, is a lay advocate and is able to represent the Applicant as his agent before the Commission pursuant to s 529 of the Industrial Relations Act 2016 without the leave of the Commission. Mr Heffernan has indicated that he, through Discrimination Claims, will have primary carriage of AD/2017/42 for the Applicant. However, Worker Law is engaged by the Applicant for the purposes of giving legal advice. According to the Applicant, he has made this application so as to be transparent in his dealings with the Commission. The Applicant submits this application has been made out of an abundance of caution on his part. Mr Heffernan has further advised the Commission that, on occasions, he may not be in a position to attend mentions of AD/2017/42 and the like, and this application would enable solicitors from Workers Law to attend such matters on the Applicant’s behalf.
Section 530(4) of the Industrial Relations Act 2016 sets out the considerations that the Commission must have regard to in deciding whether to grant a party leave to be legally represented. Section 530(4) of that Act provides as follows:
"530 Legal representation
…
(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 itself, himself or herself; 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 Applicant submits that his case in AD/2017/42 is legally and factually complex. Further, it raises issues of discrimination and vicarious liability under the Anti-Discrimination Act 1991, and involves issues of constructive dismissal. Further, there are disputed facts in the application which are likely to require the Commission to make findings on credit in respect of various witnesses.
The parties in this matter have each filed Statements of Facts and Contentions. Allegations of direct discrimination, indirect discrimination and vicarious liability have been pleaded in the Applicant's Statement of Facts and Contentions. The alleged discrimination is based on the impairment attribute.
The Respondent was represented by Ms Emma Kirkby, of Queensland Master Builders Association, Industrial Organisation of Employers (QMBA). a registered industrial organisation of employers. Ms Kirkby advised that the Respondents objected to the Applicant's application to be legally represented. Ms Kirkby submitted that the Commission must satisfy itself that one of the conditions outlined in s 530(4) of the Industrial Relations Act 2016 exists before granting leave for the Applicant to be legally represented. The Respondents deny that the proceeding in AD/2017/42 presents issues that are more legally complex and technical than other claims brought under the Anti-Discrimination Act 1991. The Respondents also point to the fact that Mr Heffernan is an experienced industrial advocate.
The Respondents submit that Ms Kirkby, whilst admitted to legal practice in 2017, “does not, and has not, worked as a lawyer”. It was further submitted that the granting of this application would result in an imbalance in the representation before the Commission. This it was said would favour the Applicant.
The Respondents further contend that if the Applicant was granted leave to be legally represented they would be required to incur the additional cost of engaging their own legal representative.
During the course of the Mention, Mr Heffernan raised the issue as to whether Ms Kirkby could represent the Second Respondent as he was not a member of the QMBA.
I undertook to reserve my decision in the matter and release it in due course.
On 2 February 2018 the Industrial Registry received a Notice of Withdrawal of Appointment of Agent from Ms Kirkby of the QMBA. My Associate then sought from the Second Respondent advice as to whether he and the First Respondent continued to maintain their objection to the Applicant’s application for leave to be legally represented.
Mr Robert Turner, in an e-mail dated 5 February 2018, responded as follows:
“As the Applicant has removed my support by objecting to me being supported by the Master Builders Association and due to unresolved issues of the last 12 months I am presently not in a position to afford legal representation and on the [sic] basis, that I believe the Applicant Wayne Gamble and myself should be on equal footing and therefore I maintain my objection to Legal Representation in the matter AD/2017/42.”
Conclusion
As I have previously indicated the parties have filed their Statements of Facts and Contentions in this application. In particular, the Applicant contends that the Second Respondent imposed on him, during his employment with the First Respondent, a term that he, with his impairment, was unable to comply with given his impairment. Thus the issue of indirect discrimination will be the subject of evidence before the Commission with a determination of indirect discrimination being required. The issue of indirect discrimination is not generally an easy concept for lay advocates to grasp.
Had AD/2017/42 not involved an allegation of indirect discrimination, I would still be of the view that the granting of leave for the Applicant to be legally represented would enable the hearing and determination of the matter to be dealt with more efficiently, having regard to the complexity of the matter. The hearing and determination of claims of discrimination on the basis of the attribute of impairment will generally involve issues of law which are best dealt with by lawyers.
When one considers that this application also involves an allegation of indirect discrimination I am more convinced that the Applicant should be granted leave to be legally represented in this application. There is a level of complexity in matters involving indirect discrimination which is not always apparent where only direct discrimination is alleged. I am strongly of the view that matter AD/2017/42 would be dealt with more efficiently should I grant the application and order that the Applicant has leave to be legally represented in this matter.
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