Fellows v State of Queensland

Anti-Discrimination Act 1991, s 175

Human Rights Act 2019, s 25

Industrial Relations Act 2016, s 530

Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307

State of Queensland (Queensland Health) v Hume [2022] ICQ 001

Wong v Medical Board of Queensland & Ors [2006] QADT 41

• [1] Ms Kylee-Rachel Fellows ('the Complainant') is employed by the State of Queensland ('the Respondent').

• [2] On 6 December 2021, the Complainant made a Complaint to the Queensland Human Rights Commission ('the QHRC') alleging that she was the subject of unlawful discrimination by the Respondent on the basis of her impairments, in contravention of the Anti-Discrimination Act 1991 ('the AD Act'). The Complainant also alleged that, contrary to the Human Rights Act 2019, certain of her human rights had been breached. Some of the allegations were made out of time but were accepted by the QHRC.

• [3] On 27 March 2023, the QHRC referred the Complaint to this Commission. Conciliation has not resulted in the resolution of the Complaint. The matter has been allocated to me for trial.

• [4] Both the Complainant and the Respondent have filed statements of facts and contentions.

• [5] Paragraphs 3 to 53 and 54 to 64 of the Complainant's Statement of Facts and Contentions filed on 22 September 2023 ('the Complainant's Contentions') contain complaints made to the QHRC more than one year after the alleged contraventions of the AD Act ('the out of time allegations'). While the QHRC accepted the out of time allegations, I must consider exercising a separate discretion, pursuant to s 175(2) of the AD Act, as to whether I will deal with the out of time allegations. The Respondent opposes the Commission dealing with the out of time allegations.

• [6] On 11 April 2024, the Respondent made an application in existing proceedings, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), for leave to be represented by private counsel instructed by Crown Law ('the Respondent's application to be represented by a lawyer'). The Complainant has filed a response opposing the Respondent's application to be represented by a lawyer.

• [7] The parties have filed and served written submissions in respect of the out of time allegations, and they have filed and served written submissions and other material in relation to the Respondent's application to be represented by a lawyer. The parties are content for me to determine both matters on the papers.

• [8] The issues for me to determine are whether:

• pursuant to s 175(2) of the AD Act, I should deal with the out of time allegations; and

• pursuant to s 530(1)(c) of the IR Act, I should give leave to the Respondent to be represented by a lawyer.

• I will not deal with the out of time allegations; and

• I will give leave to the Respondent to be represented by a lawyer, namely private counsel, pursuant to s 530(1)(c) of the IR Act.

The relevant provisions of the Anti-Discrimination Act 1991

(1) The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to the commissioner more than 1 year after the alleged contravention of the Act.

(2) If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.

• [11] There is no dispute between the parties as to the matters that may be considered in the application of s 175(2) of the AD Act, namely:

• any explanation by the complainant for the delay;

• any prejudice to the respondent, should the discretion be exercised in the complainant's favour;

• any prejudice to the complainant, should the discretion not be exercised in the complainant's favour; and

• whether there is a lack of merit to the complaint.[1]

• [12] The parties marshalled their submissions around these matters.

• [13] As I understand the parties' contentions, the relevant background, for the purposes of this decision, is:

• the Complainant commenced employment with the Respondent in 2011;

• her substantive position is Senior Prosecutor, classification PO5, within the Office of the Work Health and Safety Prosecutor ('OWHSP') which forms part of the Office of Industrial Relations ('OIR');

• OIR is a business unit of the Department of Education ('the Department'); and

• on 18 March 2019, Mr Aaron Guilfoyle commenced as the Work Health and Safety Prosecutor ('Mr Guilfoyle') and he resigned from that position effective 11 March 2022.

• [14] The Complainant's impairments, in respect of which her complaints are made, are:

• an adjustment disorder/reactive anxiety disorder alleged to have been sustained on 1 October 2019.

• [15] The Complaint makes four complaints of unlawful discrimination.

• [16] Although there are many dates and events alleged in the Complainant's contentions, I will provide a broad summary of the allegations.

• [17] Because of the parties' submissions, it is necessary to summarise all four of the Complainant's complaints.

Paragraphs 8 to 53 of the Complainant's contentions

• on 16 May 2019, she disclosed to Mr Guilfoyle that she suffered from bipolar affective disorder;

• from about 16 May 2019 until about 11 October 2019, Mr Guilfoyle and, it seems, other officers in the OWHSP, treated her unfavourably at work, including by avoiding her, being critical of her work performance and forcing her out of the OWHSP on 11 October 2019 which she contends was a dismissal;[2]

• Mr Guilfoyle would not have treated certain named legal and administrative officers the same way; and

• the unfavourable treatment was on the basis of her bipolar affective disorder and her adjustment disorder/reactive anxiety disorder, such that she was the subject of unlawful direct discrimination in the work area (the 'Guilfoyle allegations').

Paragraphs 54 to 64 of the Complainant's contentions

• from 19 March 2020, she commenced a graduated return to work by way of a host placement in another part of OIR, namely, the Workers' Compensation Fraud Prosecutions Unit;

• on 23 June 2020, the Complainant's psychiatrist issued, to the OIR, a 'Worker Capacity Certificate', which stated that the Complainant had an adjustment disorder/reactive anxiety disorder but that she was cleared to continue in the host placement;

• on 24 June 2020, an officer of OIR advised the Complainant that the host placement would be cancelled as from 12 July 2020[3] which was unfavourable treatment; and

• the unfavourable treatment was on the basis of her adjustment disorder/reactive anxiety disorder, such that she was the subject of unlawful direct discrimination in the work area, and which also was a contravention of s 25 of the Human Rights Act 2019 (the 'Host Placement allegations').

Paragraphs 65 to 71 of the Complainant's contentions

• on 13 July 2020 she filed an application for workers' compensation with WorkCover Queensland in respect of her sustaining an adjustment disorder/reactive anxiety disorder;

• on 13 October 2020, WorkCover Queensland rejected that application on the basis that it was made out of time;

• on 14 January 2021, the Complainant made an application for review of the WorkCover Queensland decision with the Workers' Compensation Regulator;

• the review of the WorkCover Queensland decision was undertaken 'in-house', namely, by officers within the Workers' Compensation Regulator;

• the decision by the Workers' Compensation Regulator, not to arrange for independent legal advice, in respect of the Complainant's application to review the WorkCover Queensland decision, was unfavourable treatment of the Complainant; and

• the unfavourable treatment was on the basis of the Complainant's bipolar affective disorder and her adjustment disorder/reactive anxiety disorder, such that she was the subject of unlawful direct discrimination in the area of the administration of State laws and programs, and which also was a contravention of s 25 of the Human Rights Act 2019 ('the Regulator allegations').

Paragraphs 72 to 95 of the Complainant's contentions

• after the cessation of her host placement within the Workers' Compensation Fraud Prosecutions Unit as from 12 July 2020, she did not return to work in OWHSP;

• following the Complainant forwarding to OIR a report from her psychiatrist dated 29 November 2021, an officer of OIR requested that the Complainant advise of her intentions about returning to work by 4 March 2022;

• on 4 March 2022, the Complainant forwarded a proposal for her return to work in OIR in response to which, on 28 March 2022, an officer of OIR advised the Complainant that there was insufficient medical evidence available to be satisfied of her safe return to work in any role;

• on 6 May 2022, an officer of OIR directed the Complainant to be examined, on 19 July 2022, by a medical practitioner for the purposes of an independent medical examination in respect of which, the questions posed for the medical practitioner, were framed by the knowledge of the Complainant's bipolar affective disorder which was unfavourable treatment, such that she was the subject of unlawful direct discrimination in the work area;

• on 8 August 2022, the report of the independent medical examination was forwarded to the Complainant's psychiatrist which contained inaccurate and irrelevant considerations, and offensive statements, such that the forwarding of that report was a breach of s 25 of the Human Rights Act 2019;

• on 4 April 2023, the Complainant was requested by an officer of OIR to respond to the report of the independent medical examination which concluded that her absence from work was caused by mental illness or disability, namely, '... severe, treatment resistant Bipolar Affective Disorder';

• on 25 April 2023, the Complainant responded to the report of the independent medical examination;

• the Respondent has not been in contact with the Complainant since that time; and

• on 2 and 3 December 2023, an officer of OIR contacted the Complainant's psychiatrist to clarify and amend an error in his report which was in breach of s 25 of the Human Rights Act 2019 due to the Complainant's earlier refusal, on 20 September 2021, to authorise OIR to liaise directly with her medical advisors ('the return to work allegations').

• [22] The Complainant had to make her complaints to the QHRC within 1 year after the contraventions. Thus, any allegation about a contravention of the AD Act that occurred before 6 December 2020 is out of time.

• [23] The Guilfoyle allegations and the Host Placement allegations allege contraventions of the AD Act that occurred before 6 December 2020.

• [24] I must, having regard to s 175(2) of the AD Act, consider if I should deal with those allegations.

On the balance of fairness between the parties, is it reasonable for the Commission to deal with the Guilfoyle allegations and the Host Placement allegations?

• [25] The Complainant submits that, for the Guilfoyle allegations, the delay is 18 months. The Respondent submits that the Guilfoyle allegations are between 14 to 18 months out of time.

• [26] The approximate delay in making the Guilfoyle allegations is between 14 to 18 months.

• [27] I accept the Respondent's submission that, given the 12 month time limit in which to make a complaint, this is a significant delay.

• [28] The Complainant submits that the length of the delay for the Host Placement allegations is 9 months. The Respondent submits that these allegations are at least five months out of time.

• [29] The delay in making the Host Placement allegations is approximately five months.

• [30] Again, I accept the Respondent's submission that, given the 12 month time limit in which to make a complaint, this is still a significant delay.

Any explanation by the Complainant for the delay

• [31] The Complainant's explanation for the delay in making the Guilfoyle allegations and the Host Placement allegations is that:

• the factual circumstances relating to the out of time allegations form part of a series of events that occurred following her disclosure of her bipolar affective disorder, namely:

• - her subsequent workplace psychiatric injury sustained after she made the disclosure; and

• - the management of her injury, and her return to work and rehabilitation by the Respondent;

• it was not until 15 September 2021 that she became aware the Respondent had no intention of assisting her to return to work in an alternative workplace and that the Respondent expected her to return to the same workplace, which had a causal connection with her adjustment disorder/reactive anxiety disorder, such that it was only at that time she '... "acquired the necessary knowledge of the factual elements" of a substantive part of her Complaint against the Respondents, approximately two months prior to the Complaint being made with the QHRC on 6 December 2021';[4]

• it would be difficult for the Commission to make a determination on the facts in isolation of each other, as the out of time allegations form part of a series of events that occurred following her disclosure of her bipolar affective disorder;

• from commencing sick leave on 1 October 2019, she was actively engaged in specialist medical treatment with a view to commencing a gradual return to work with the OIR which resulted in the host placement commencing on 19 March 2020 and ending on 12 July 2020; and

• she experienced an increase in the severity of her symptoms from the date of being notified of the termination of the host placement.

• [32] In her written submissions, by way of summary, the Complainant contends:

• [44] The Complainant submits that it was reasonable that an application for the out of time allegations was not made within limitation period prescribed by section 138 of the AD Act, the [sic] as:

a) the complainant was motivated to overcome her injury and return to work in some capacity with the Respondents.

b) the Respondents made representations as early as October 2019, that they would provide support to re-enter the workforce, through an alternative host placement or transfer, allowing the Complainant to move on and focus on her recovery.

1. the Complainant was undergoing extensive therapy for her injury, through regular visits with her psychiatrist, GP, and physiotherapist.

d) The Complainant was highly intimidated by Mr Guilfoyle's behaviour and did not wish to commence a complaint process against a person she felt threatened by. This was conveyed to officers of the 2nd Defendant, Together Union and external rehabilitation providers.

e) Returning to work formed part of the Complainant's rehabilitation plan. However, finding work outside of the Respondent's organisation was not an option, due to the nature of the Complainant's injury and her requirement for a medically supervised gradual return to work program.

f) The unsuccessful WorkCover application was to seek assistance with the Complainant's medical expenses and rehabilitation.

g) It wasn't until the emails of 15 and 27 September 2021 that it became apparent to the Complainant that the Respondents had no intention of finding a suitable host placement and wished to place the Complainant back in the work area where her injury occurred.

h) On 27 October 2021, the Office of the Queensland Integrity Commissioner referred the Complainant to the QHRC.

1. The Complainant made her complaint on 6 December 2021. She was significantly unwell by this time.

• [33] The Respondent relevantly submits that:
  • in respect to the Complainant's assertion that the out of time allegations relate to a series of events:

• - the Guilfoyle allegations relate to the alleged actions of Mr Guilfoyle between 16 May 2019 and 18 October 2019;

• - it is alleged by the Complainant that there was a pattern of behaviour after she disclosed her bipolar affective disorder to Mr Guilfoyle in May 2019;

• - the Complainant does not assert that Mr Guilfoyle disclosed to others information about that impairment or that Mr Guilfoyle, or anyone else from the OWHSP, had any direct involvement in the other alleged contraventions referred to in paragraphs [54] to [89] of her Contentions such that the Guilfoyle allegations are discrete and entirely separate to any other allegations; and

• - even if Mr Guilfoyle engaged in a pattern of behaviour, any such pattern of behaviour is limited to the period between 16 May 2019 and 18 October 2019, and is out of time; and

• in respect of the other reasons advanced by the Complainant:

• - the Complainant does not assert that she was unaware of the jurisdiction of the QHRC and, or in the alternative, that statutory time limits apply to complaints made to the QHRC;

• - the Complainant was, or ought to have been, aware of the importance of statutory time limits, given she is an experienced lawyer employed by the Respondent;

• - the Complainant was, at various times in 2019 (prior to the expiration of the statutory time limit), consulting with her trade union in respect of her concerns regarding certain events, including some of those which are the subject of the Guilfoyle allegations;

• - the Complainant has not produced any medical evidence to suggest that she was unfit (or that she was undergoing treatment which meant she was unable) to lodge her Complaint with the QHRC in the statutory time limit and, significantly, prior to the expiration of the statutory time limit, from March 2020 to July 2020, the Complainant was fit to engage in a graduated return to work host placement;

• - since at least July 2020, the Complainant has demonstrated her capacity to exercise her legal rights in relation to her alleged treatment in the OWHSP workplace, by lodging a WorkCover claim and pursuing reviews or appeals in respect of the (adverse) decision by WorkCover Queensland;

• - the Complainant's delay in making the Complaint is not explained by the return to work activities engaged in by the OIR in the period after October 2019 or by any delay in the progression of the Complainant's WorkCover application; and

• - it is clear the Complainant made a conscious decision not to pursue a complaint regarding the Guilfoyle allegations or the Host Placement allegations due to her apparent belief or assumption that she would be placed in an alternative role (on an ongoing basis) and would not be required to return to her substantive position with the OWHSP, which is not a reasonable explanation for the Complainant's delay in making the Complaint in respect of the Guilfoyle allegations, particularly given that the Complainant ought to have been aware of the importance of statutory time limits.

• [34] In its reply submissions, the Respondent submitted:

• while the events referred to in the Guilfoyle allegations and the Host Placement allegations may be relevant background information or context to the other (in time) allegations in her Complaint, those allegations need not be accepted by the Commission in order for relevant evidence regarding such events to be presented and taken into account by the Commission; and

• the Complainant's submission that she did not acquire the necessary knowledge of the factual elements of a substantive part of her Complaint, until approximately two months prior to the Complaint being made to the QHRC, cannot be accepted because:

• - the Guilfoyle allegations relate to the alleged conduct of Mr Guilfoyle, which the Complainant says occurred after she disclosed her bipolar affective disorder to him and Mr Guilfoyle's alleged conduct was due to that impairment;

• - the Host Placement allegations relate to the cessation of her host placement, which the Complainant says occurred because she provided a Worker Capacity Certificate which disclosed her adjustment disorder/reactive anxiety disorder; and

• - having regard to the distinct nature of these allegations, it is clear the Complainant was aware of the material facts relevant to the Guilfoyle allegations and Host Placement allegations at the time the alleged conduct occurred; and

• to the extent the Complainant submits she did not make a Complaint about the Guilfoyle matters at the relevant time because she was frightened and intimidated by Mr Guilfoyle, her mental health was compromised and, or in the alternative, she believed or assumed that she would be placed in an ongoing alternative role, these are not compelling reasons for an exercise of the discretion under s 175(2) of the AD Act because the acts in which she did engage about those matters are inconsistent with such assertions, including:

• - by seeking advice from her trade union in 2019;

• - by engaging in the host placement in 2020; and

• - in 2020 and 2021, by making her workers' compensation claim, the related application for review with the Workers' Compensation Regulator, and the related application to appeal to this Commission.

• [35] In my view, the Complainant has not provided an acceptable explanation for her delays and her submissions as to why she has an acceptable explanation for her delays should be rejected.

• [36] First, I do not accept the Complaint's submissions that she did not acquire the necessary knowledge of the factual elements of a substantive part of her Complaint until two months before 6 December 2021.

[16] It was not until the 2nd Respondents [sic] correspondence of 15 September 2021, that the Complainant became aware that the Respondents had no intention of assisting the Complainant to return to work in an alternate workplace. The Respondents expected the Complainant to return to the same environment where her work-related injury occurred (Impairment 2), disregarding medical advice of her GP and Psychiatrist advising that she should not return to the Office of the Work Health Safety Prosecutor. It is submitted this is the time the Complainant 'acquired the necessary knowledge of the factual elements' of a substantive part of her Complaint against the Respondents, approximately two months prior to the Complaint being made with the QHRC on 6 December 2021, and well within the statutory limitation period.[5]

• [38] In support of that submission, the Complainant relied on part of the decision in Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt ('Ryle'),[6] where Industrial Commissioner Dwyer stated:

• [121] While the language of s 138 of the AD Act expressly limits the making of a complaint to 'within 1 year from the date of the contravention', I note that the operation of such statutory limitations in other causes of action can be altered or qualified in certain circumstances where key facts were not within a plaintiff's knowledge.

• [122] It would seem a particularly unfair reading of s 138 of the AD Act to apply it in a rigid and literal fashion, with a consequence that a complainant would be denied an opportunity to pursue a complaint merely because the factual elements of that complaint were not known to them during the limitation period. This is especially so in this matter where e.g. Ms Ryle had requested the information in 2013 but it was denied to her.

• [123] Importantly, it is clear that Ms Ryle took appropriate steps to ascertain the relevant information, and she did so within a reasonable time frame given the barriers she faced with her fluctuating mental health.

• [124] In those circumstances, I consider that the time limit prescribed by s 138 of the AD Act ought to be read generously. It ought to be read in such a way that it allows for circumstances where it does not commence to operate until such time as the person affected, having made reasonable and timely inquiries, becomes aware of all of the material facts of the contravention.[7]

• [39] The circumstances contemplated by Industrial Commissioner Dwyer in Ryle are different to the circumstances facing the Complainant in relation to the Guilfoyle allegations and in relation to the Host Placement allegations. This is because the factual elements for the Complainant to make the Guilfoyle allegations, and to make the Host Placement allegations, were known to her at the time those facts emerged.

• [40] That is to say, in respect of the allegations the Complainant makes of unfavourable treatment by Mr Guilfoyle (and, it seems, others within the OWHSP) from about 16 May 2019 until about 11 October 2019, that alleged unfavourable treatment was known to her on the dates she says that treatment occurred over that period. There were no other factual elements that the Complainant needed to know to form the contention that, on those dates, she was the subject of unlawful direct discrimination, on the basis of her impairments, in the work area.

• [41] Exactly the same can be said in relation to the Host Placement allegations. The Complainant's allegation is that on 23 June 2020, a Worker Capacity Certificate was provided from her psychiatrist to the OIR and, on the very next day, 24 June 2020, she was informed that the host placement she had been undertaking within the Workers' Compensation Fraud Prosecutions Unit would not proceed beyond 12 July 2020. Again, there were no other factual elements that the Complainant needed to know to form the contention that, on 24 June 2020, she was the subject of unlawful direct discrimination, on the basis of her impairments, in the work area.

• [42] In coming to these conclusions, it is important to note that the Complainant does not submit that she was ignorant of the elements, contained in the AD Act, which constitute direct discrimination on the basis of an impairment in the work area. Nor does the Complainant submit that she was ignorant of the Human Rights Act 2019.

• [43] Furthermore, the factual elements that make up the allegations contained in the Guilfoyle allegations and in the Host Placement allegations are separate and distinct from the factual elements that make up the Regulator allegations and the return to work allegations.

• [44] For these reasons, I do not accept, as meritorious, this aspect of the Complainant's explanation for her delay.

• [45] Secondly, the Complainant submits that the reasons for her delay included:
  • the fact that she was highly intimidated by Mr Guilfoyle's behaviour; and

• the extensive medical treatment she was receiving through her psychiatrist, general practitioner and physiotherapist.

• [46] I am not persuaded that these reasons for her delay are meritorious.

• [47] First, in relation to being highly intimidated by Mr Guilfoyle's behaviour, in paragraph [17] of her submissions, the Complainant submits:

[17] Mr Guilfoyle's behaviour towards the Complainant was intimidating, and as the Complainant's mental health was compromised, she wanted to move to another workplace and not commence a complaint process against a man that frightened her. This was explained to numerous officers of the 2nd Respondent, and will be supported by evidence at hearing.

• [48] Further, in paragraph [44] of her written submissions, the Complainant submits:

d) The Complainant was highly intimidated by Mr Guilfoyle's behaviour and did not wish to commence a complaint process against a person she felt threatened by. This was conveyed to officers of the 2nd Defendant, Together Union and external rehabilitation providers.

• [49] I cannot accept these submissions. On the Complainant's own contentions (at paragraph [52]) she claims she was dismissed from the OWHSP on 11 October 2019. As a consequence, on her own case, she was not under Mr Guilfoyle's supervision from that time. Yet, the Complainant did not make a complaint about the Guilfoyle allegations within the relevant limitation periods, namely (having regard to the dates involved in the Guilfoyle allegations) between 16 May 2020 and 11 October 2020.

• [50] Further still, the Complainant's feelings of being intimidated by Mr Guilfoyle could not have had any logical bearing on her not making the Host Placement allegations within time. As I understand her contentions, Mr Guilfoyle did not make the decision not to continue with the host placement. In any event, by that time, the Complainant was not working within the OWHSP with Mr Guilfoyle.

• [51] Secondly, I refer to the extensive medical treatment the Complainant was receiving. The Complainant submitted (at paragraph [23] of her submissions) that from 1 October 2019 when she commenced sick leave, she was actively engaged in specialist medical treatment with a view of commencing a gradual return to work, within the OIR, but in an alternative workplace. A number of things may be said about this submission.

• [52] As the Complainant submitted in paragraph [24] of her submissions, on 27 February 2020, she '... participated in negotiations' with the OIR '... to enter into a graduated return-to-work on suitable duties program.' It would seem, therefore, that the specialist medical treatment being received by the Complainant, as from 1 October 2019, did not prevent her from participating in such negotiations.

• [53] In addition, having regard to paragraphs [25]-[38] of the Complainant's submissions, on 13 July 2020, which was after the date the Complainant was advised that the OIR would not be continuing the host placement beyond 12 July 2020, she made an application for workers' compensation. When that application was rejected by WorkCover Queensland on 13 October 2020, the Complainant, on 14 January 2021, made an application for a review of that decision with the Workers' Compensation Regulator. Following the rejection of her application for review, the Complainant, on 19 April 2021, then commenced an appeal in this Commission against that rejection by the Workers' Compensation Regulator and subsequently participated in a conciliation conference before the Commission in respect of that appeal.

• [54] These acts by the Complainant are inconsistent with her contention that the medical treatment she was receiving, as from 1 October 2019, was a reason for her not making her complaints about the Guilfoyle allegations and the Host Placement allegations until 6 December 2021. That is, despite the medical treatment the Complainant was receiving, the Complainant was able to conduct negotiations for the host placement and prosecute an application for workers' compensation, including commencing the related review and appeal and participating in a compulsory conference. While I accept that the Complainant wanted to focus on her recovery, such a focus did not stand in her way of negotiating a host placement and prosecuting her workers' compensation claim.

• [55] For these reasons, I do not accept, as meritorious, this aspect of the Complainant's explanation for her delay.

• [56] Thirdly, the Complainant submits that it was not until she received the correspondence on 15 and 27 September 2021 (referred to in paragraphs [39] and [40] of her submissions) that it became apparent to her that the Respondent had no intention of providing her with a suitable host placement and wished to place her back in the work area where her injury occurred. Further, as the Complainant submits in paragraph [41] of her submissions, on 28 September 2021, she emailed the Office of the Integrity Commissioner to request assistance. The Complainant then submits that, on 27 October 2021, the Office of the Integrity Commissioner advised her that she should contact the QHRC as the agency responsible for complaints under the AD Act and the Human Rights Act 2019. Another six weeks then elapsed before the Complainant made her complaint to the QHRC on 6 December 2021.

• [57] A number of matters arise from these submissions.

• [58] First, I find it difficult to accept that a reason the Complainant did not make any complaint to the QHRC about the Guilfoyle allegations and the Host Placement allegations was the email correspondence in September 2021. While I appreciate that, from the Complainant's point of view, she did not wish to return to the OWHSP, the facts upon which the Complainant could form a contention that she was the subject of unlawful direct discrimination, on the basis of her impairments, were clearly known to her well in advance of September 2021. That is, the fact that the Respondent wanted the Complainant to return to the OWHSP was not a fact of which the Complainant needed to know to have been able to make her complaints to the QHRC about the Guilfoyle allegations and the Host Placement allegations.

• [59] Secondly, while the Complainant states that, on 28 September 2021, she emailed the Office of the Integrity Commissioner '... to request assistance', she does not state the nature of the assistance she was seeking or the nature of the information she provided to the Office of the Integrity Commissioner upon which the assistance was sought. From paragraph [41] of her submissions, it may be inferred that the nature of the information she provided to the Office of the Integrity Commissioner included allegations that she had been the subject of unfavourable treatment because of her impairments. I draw this inference because the Complainant submits that the Office of the Integrity Commissioner advised her to contact the QHRC as '... the agency responsible for complaints under the Anti-Discrimination Act 1991 and the Human Rights Act 2019.'

• [60] The Complainant gives no explanation why she contacted the Office of the Integrity Commissioner as opposed to the QHRC. As the Respondent submits, the Complainant does not submit that she was ignorant of the existence of the QHRC. I find it hard to accept that a State government lawyer would have to rely upon advice from the Office of the Integrity Commissioner about the relevant existence and purpose of the QHRC.

• [61] Finally, the Complainant does not give a clear reason why it took her another six weeks to make her complaint to the QHRC upon receiving the advice she stated she received from the Office of the Integrity Commissioner. I accept that the Complainant submits that, at that time, she was significantly unwell. However, her illness did not prevent her from earlier contacting the Office of the Integrity Commissioner.

• [62] For all of the above reasons, I am not persuaded that the Complainant has advanced an acceptable explanation for her delay in making the Guilfoyle allegations and the Host Placement allegations.

Any prejudice to the Respondent, should the discretion be exercised in the Complainant's favour

• [63] The Complainant submits that there would be little to no prejudice to the Respondent if the Commission exercises its discretion and deals with the Guilfoyle allegations and the Host Placement allegations. This is because:

• the allegations are not new to the Respondent in that they were made to the Respondent when she commenced her sick leave in October 2019 and in respect of the statement she made for the purposes of her application to WorkCover Queensland;

• because of the size of the Respondent, it is unlikely any relevant records have been mislaid and the majority of the witnesses still work within the Respondent;

• Mr Guilfoyle is now a '... high-profile special counsel' based in Brisbane; and

• the documents, the subject of the Complainant's application to WorkCover Queensland, relate to the out of time allegations and will be useful in refreshing the memories of the Respondent's witnesses.

• [64] The Respondent submits that it will suffer significant prejudice in respect of its ability to respond to the Guilfoyle allegations and the Host Placement allegations because:

• the Guilfoyle allegations relate to alleged events that occurred between May 2019 and October 2019;

• the Host Placement allegations relate to alleged events that occurred between 27 February 2020 and 24 June 2020;

• in light of the above, the length of the delay in lodging the out of time allegations is significant and, as a result of the delay, the Respondent will be limited in its ability to respond to those allegations due to the fading of the memories of witnesses and, or in the alternative, the availability of relevant witnesses;

• the Guilfoyle allegations primarily relate to private verbal interactions that occurred between the Complainant and Mr Guilfoyle four years ago, for which there appear to be no or very few corroborating witnesses, and there is likely to be limited documentary evidence available to assist the memories of witnesses;

• a key witness to the Host Placement allegations, Ms Georgia Lashman, ceased employment with the Respondent on 31 July 2020;

• while there is some information concerning the Guilfoyle allegations previously gathered in relation to the Complainant's application to WorkCover Queensland, the information:

• - was not gathered by way of formal investigation;

• - was not in the form of sworn or affirmed statements of evidence; and

• - was provided by certain personnel, including Mr Guilfoyle, in response to discrete questions raised by OIR staff to assist in the preparation of a response to WorkCover Queensland; and

• it must be presumed that some prejudice will be suffered by the Respondent by reason of the fact that it will be denied the freedom from liability which the statutory time limit affords.

• [65] I accept that the allegations of fact the subject of the Guilfoyle allegations and the Host Placement allegations occurred some time ago. For the reasons I have given earlier, the length of the delay by the Complainant, in making those allegations, is significant.

• [66] However, despite that significant delay the Respondent has not submitted that the relevant witnesses are no longer available to be contacted. Furthermore, it seems to be the case, having regard to the parties' submissions, that there is some contemporaneous documentation that may assist the memories of the relevant witnesses that may be called by the Respondent in relation to these allegations.

Any prejudice to the Complainant, should the discretion not be exercised in the Complainant's favour

• [67] The Complainant relevantly submits that:

• the out of time allegations '... are intrinsic to the allegations as a whole';

• if the Commission's discretion is not exercised in her favour, she will be prevented from relying on the out of time matters to '... establish a pattern of conduct and she will lose her ability to prosecute a significant part of her claim'; and

• she will be deprived of the opportunity to have a fair determination of her (out of time) allegations.

• [68] The Respondent submits that the Complainant will suffer no prejudice because:

• she has already pursued, or attempted to pursue, the out of time allegations through the processes connected with her WorkCover Queensland claim;

• she will be entitled to pursue the remaining two complaints contained in her Contentions; and

• the Guilfoyle allegations and the Host Placement allegations are not intrinsic to the remaining two complaints contained in her Contentions.

• [69] The reasons advanced by the Complainant do not persuade me that she will suffer the prejudice she says she will suffer if I do not deal with the Guilfoyle allegations and the Host Placement allegations. This is for two reasons.

• [70] First, for the reasons given earlier, those allegations are not intrinsic to her remaining, in time, allegations. That is to say, to be successful in proving that she has been the subject of unlawful discrimination as alleged in the Regulator allegations and as alleged in the return to work allegations, she does not need to be successful in proving that she has been the subject of unlawful discrimination in the Guilfoyle allegations and in the Host Placement allegations. Factually and temporally, the Guilfoyle allegations and the Host Placement allegations are distinct from the Regulator allegations and the return to work allegations.

• [71] Secondly, for the same reasons, the Complainant will not be deprived of the opportunity to have a fair determination of her in time allegations. There would be nothing preventing the Complainant from attempting to lead some evidence about matters connected with the Guilfoyle allegations and the Host Placement allegations, assuming that evidence is relevant in tending to prove the Regulator allegations and the return to work allegations.

• [72] I accept that a prejudice the Complainant would suffer would be not to have a determination of the Guilfoyle allegations and the Host Placement allegations. However, that is only part of the reasoning advanced by the Complainant as to why she says she will suffer prejudice.

Whether there is a lack of merit to the complaints

• [73] The Complainant submits that the Guilfoyle allegations and the Host Placement allegations are not frivolous, trivial, vexatious, misconceived or lacking in substance and that there are a number of serious allegations and relevant facts in dispute. Therefore, the Complainant submits that it cannot be determined, at this point in her proceeding and in the absence of any cross examination of relevant witnesses, that those allegations lack merit.

• [74] The Respondent submits that in respect of the Guilfoyle allegations:

• the allegation that she was dismissed is misconceived because she does not contend that her employment was terminated or otherwise ended;

• the persons the Complainant identifies as appropriate comparators are not appropriate comparators because they either occupied roles more senior to the Complainant or otherwise were administrative officers or paralegal officers, and it is not pleaded that their circumstances were the same, or not materially different, to those of the Complainant; and

• the Complainant does not articulate the basis upon which she said she was treated less favourably than another person without her impairment would have been treated in circumstances that were the same or not materially different.

• [75] The Respondent submits that in respect of the Host Placement allegations, the Complainant has not pleaded the basis upon which she says the cancellation of the host placement amounted to less favourable treatment of her compared to an appropriate comparator. Specifically, the Respondent points to the fact that the Complainant has not identified any comparator in respect of these allegations.

• [76] The earlier Directions Orders made by Industrial Commissioner McLennan, about this proceeding, were clear that in respect of the Complainant's complaint of direct discrimination, the Complainant, in her contentions:

• if she was relying upon an actual person as the comparator, had to state the name of the comparator and why the person was an appropriate comparator; and

• had to describe how she was treated less favourably, than the appropriate comparator, by the person or persons alleged to have contravened the AD Act.

• [77] To some extent, although not in a clear way, the Complainant, in respect of the Guilfoyle allegations, deals with these issues in paragraphs [10] and [15] of her contentions. The Complainant does not do so in respect of the Host Placement allegations. However, these deficiencies may be remedied prior to any trial.

• [78] For these reasons and despite these deficiencies, I cannot form the view that there is a lack of merit in the Guilfoyle allegations and in the Host Placement allegations. Apart from these issues, these allegations would need to be determined by considering all the evidence which would include assessing the credit of the relevant witnesses.

• [79] While it is relevant to consider matters such as any prejudice to the Respondent and whether there is a lack of merit to the out of time complaints, ultimately, my task is to consider whether or not I will exercise my discretion to deal with the Guilfoyle allegations and the Host Placement allegations. My discretion to deal with those allegations is enlivened if I consider that, on the balance of fairness between the parties, it would be reasonable to do so.

• [80] In my view, on the balance of fairness between the parties, I am not persuaded it would be reasonable for the Commission to deal with the Guilfoyle allegations and the Host Placement allegations. This is for three reasons.

• [81] First, given the fact that the limitation period is one year, the length of the delay for the Guilfoyle allegations, of between 14 to 18 months, is significant. While not as long, the delay of five months in respect of the Host Placement allegations is still a significant delay.

• [82] Secondly, there is a lack of any acceptable explanation for the Complainant's delay in making the Guilfoyle allegations and the Host Placement allegations. For the reasons given above, I do not accept the reasons advanced by the Complainant for her delay.

• [83] The Complainant's submissions that she did not acquire the necessary knowledge of the factual elements of a substantive part of her complaint, until two months before 6 December 2021, cannot be accepted. The Complainant was aware of the factual elements of the Guilfoyle allegations and the Host Placement allegations when they emerged. I do not accept the Complainant's contention that she was unaware of the necessary facts to be able to make the Guilfoyle allegations and the Host Placement allegations until about September 2021.

• [84] At all material times, the Complainant was a Senior Prosecutor. The Complainant does not contend that, at any material time, she was unaware of the relevant provisions of the AD Act or the Human Rights Act 2019. The Complainant does not contend that, at any material time, she was unaware that the QHRC was the body to which complaints of unlawful discrimination under the AD Act, or allegations of breaches of the Human Rights Act 2019, could be initiated. It would be surprising if a lawyer, employed by the Respondent in a position classified PO5, would be unable to research such matters.

• [85] I do not accept that a reason for the Complainant's delay was the medical treatment she was receiving. That submission is inconsistent with the negotiations she conducted with the OIR about the host placement and her making her application for workers' compensation and the steps she took reviewing and appealing the adverse decisions made about that application. Further, the Complainant's assertion that she was intimidated by Mr Guilfoyle and, for that reason, she did not make the Guilfoyle allegations within time, does not bear scrutiny when she still could have made the complaint about those issues within time after having stopped working in the OWHSP and ceased being supervised by Mr Guilfoyle.

• [86] The Complainant's receipt of emails in September 2021, which indicated to her that the Respondent wished to return her to the OWHSP, and her subsequent contact with the Office of the Integrity Commissioner, are not meritorious reasons explaining her delay.

• [87] The Complainant was aware of the necessary factual elements of the Guilfoyle allegations and the Host Placement allegations as the relevant facts arose. The Complainant's receipt of emails in September 2021 cannot explain why she did not make her complaints about the Guilfoyle allegations and the Host Placement allegations prior to December 2021. Further, the Complainant has not explained why she sought assistance from the Office of the Integrity Commissioner as opposed to the QHRC when, given the advice she received from the Office of the Integrity Commissioner, it must have been the case that she raised issues of unlawful discrimination on the basis of her impairments when she was seeking assistance from the Office of the Integrity Commissioner.

• [88] It is inexplicable that a State government lawyer would have to rely upon advice from the Office of the Integrity Commissioner about the existence and purpose of the QHRC, and that such a lawyer would not have the ability to ascertain the role that the QHRC plays in dealing with complaints of unlawful discrimination under the AD Act and with alleged breaches of the Human Rights Act 2019.

• [89] Further, the Complainant gave no direct explanation of why it took another six weeks for her to make that complaint to the QHRC upon receiving the advice from the Office of the Integrity Commissioner.

• [90] Thirdly, my assessment is that the Complainant will not suffer the prejudice she claims she will suffer if I do not deal with the Guilfoyle allegations and the Host Placement allegations. These two allegations are not intrinsic to the in time allegations that the Complainant has made. It is true that the Complainant will lose the ability to have the Commission determine whether the Guilfoyle allegations and the Host Placement allegations are made out. However, that was not the sole basis upon which the Complainant contended she would suffer prejudice. In any event, the fact that the Complainant will lose the ability to have those two allegations determined is only one of the considerations as to whether, on the balance of fairness between the parties, it would be reasonable to deal with the Guilfoyle allegations and the Host Placement allegations.

• [91] Finally, while I generally accept the Complainant's submissions that there will be no real prejudice to the Respondent if I deal with the Guilfoyle allegations and the Host Placement allegations, and that I cannot determine, at this point, that those allegations lack merit, the earlier matters to which I have referred outweigh these latter matters.

• [92] I weigh the competing matters on the following basis.

• [93] The Complainant had one year, from the dates of the alleged contraventions of the AD Act, to make complaints of unlawful discrimination to the QHRC. The Complainant has advanced no acceptable reasons why she did not make her complaints, about the Guilfoyle allegations and the Host Placement allegations, within the limitation period, particularly when she knew of all the necessary factual elements to make complaints about those matters to the QHRC within time. Also, the Complainant's reasons of feeling intimidated by Mr Guilfoyle and the medical treatment she was receiving, when analysed, are not meritorious reasons for her delay. Equally decisive, in my view, is the fact that the Complainant will not suffer all the prejudice she says she will suffer if I do not deal with those complaints. These matters point to a greater unfairness to the Respondent, as opposed to the Complainant, if I deal with the out of time allegations. The Complainant can still fully pursue the (in time) Regulator allegations and the return to work allegations. In these circumstances, and in the balancing of fairness between the parties, it is not reasonable for the Respondent to have to defend the Guilfoyle allegations and the Host Placement allegations.

The Respondent's application to be represented by a lawyer

• [94] 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.

(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.

• [96] In summary, the Respondent relevantly submits:

• the proceeding involves significant complexity in that the Complainant's contentions allege a number of instances of direct discrimination on the basis of two separate impairments such that there have been contraventions of the AD Act and the Human Rights Act 2019; and

• having regard to the complexity, the involvement of private counsel, instructed by Crown Law, would significantly assist the parties and the Commission to ensure the proceedings are dealt with more efficiently, particularly because of counsel's speciality in oral advocacy and the presentation of legal argument and legal analysis.

• [97] In summary, the Complainant relevantly submits:

• while she is an experienced solicitor with several years of advocacy experience, she assumes her experience would be comparable to the experience of a Crown Law Senior Principal lawyer;

• the Respondent has the resources to respond to the Complaint '... in the form of Crown Law' and, on this basis, while the matter may have some complex elements, both parties have legal experience; and

• - because of the involvement of Crown Law, the Respondent would not be prejudiced if leave was not given to it to be represented by private counsel; and

• - she is not in a financial position to engage her own legal representation.

• [98] In State of Queensland (Queensland Health) v Hume,[8] I set out how, in my opinion, s 530(4)(a) of the IR Act is to be construed. That decision concerned an application for leave for a party to an appeal to the Industrial Court of Queensland to be represented by private counsel.

• [39] By contrast, s 530(4)(a) of the IR Act then refers to the complexity of '... the matter.' Because of the different phrase used, my opinion is that '... the matter' is a reference to the particular controversy or controversies requiring determination by the industrial tribunal so as to make a decision about the application for relief or, put another way, to determine the proceedings.

• [40] Fourthly, s 530(4)(a) of the IR Act is otherwise to be construed according to the ordinary meaning of the words used in that provision. A value judgment has to be formed as to whether or not the giving of leave to a party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The matter does not have to be complex, or compared to other matters that have or may become before the Court, be more complex; but regard must be had to the complexity of the matter.

• [41] Further, in having regard to that complexity, a judgment has to be formed as to whether allowing the party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently. Section 530(4) of the IR Act is relevantly concerned with whether or not discretion should be exercised in favour of a party seeking leave to be represented by a lawyer in proceedings before the Court. As a consequence, my opinion is that the adverb 'efficiently', in the context that it is used in s 530(4)(a) of the IR Act, is concerned with, at least, timeliness.

• [42] Fifthly, if the Court forms one of the value judgments in s 530(4)(a) to (c) of the IR Act, s 530 is otherwise silent as to the factors the Court must consider in terms of exercising the discretion. In such a case, the relevant considerations must be determined from the scope and object of the provision conferring the discretion.[9]

• [100] In my view, this is a case where I should give leave to the Respondent to be represented by a lawyer as it has sought. This is for four reasons.

• [101] First, given my earlier decision, the complaints presently before the Commission are the Regulator allegations and the return to work allegations. In my view, there is some complexity to these matters.

• [102] In relation to the Regulator allegations, the question is whether the decision by the Regulator not to engage an external lawyer, in determining the Complainant's application to review the decision by WorkCover Queensland not to accept her application for workers' compensation, amounted to unlawful discrimination on the basis of her impairment in the area of the administration of State laws and programs. The other issue is whether, as the Complainant contends, such a decision contravened s 25 of the Human Rights Act 2019.

• [103] The return to work allegations similarly involve considerations of whether the alleged conduct of the Respondent, in not returning the Complainant to the workplace, amounts to unlawful discrimination on the basis of her impairments and whether that conduct, and other alleged conduct, amounts to a contravention of s 25 of the Human Rights Act 2019.

• [104] Having regard to that complexity, in my view, having private counsel representing the Respondent would enable the proceedings to be dealt with more efficiently. The efficiency arises because of the specialised skill of private counsel, namely, in concisely identifying the material issues for determination, in making precise arguments to assist the Commission in resolving the issues in question, and in the examination of witnesses.

• [105] Secondly, in terms of whether it would be unfair not to allow the Respondent to be legally represented because it is unable to represent its interests in the proceedings, it is the case that the Respondent could be represented by lawyers from Crown Law. However, for the reasons given above, the efficiency brought to the proceedings, by the specialised skill demonstrated by private counsel, outweighs the fact that the Respondent could be represented by lawyers from Crown Law.

• [106] Thirdly, in terms of whether it would be unfair not to allow the Respondent to be legally represented having regard to fairness between the parties, while the Complainant is a solicitor with advocacy experience, her submissions are put on the basis that she would have a level of advocacy skill comparable to a Crown Law Senior Principal lawyer. I am not in any position to make such an assessment. What I can assess is that the Complainant has submitted that she is a solicitor with several years of advocacy experience. On the basis of that submission, it would not be unfair to allow the Respondent to be represented by private counsel.

• [107] For these reasons, my discretion to give leave to the Respondent to be represented by a lawyer is triggered.

• [108] Finally, I am sympathetic to the Complainant's submission that she is not in a financial position to engage lawyers to represent her. However, I am not persuaded that reason alone would be sufficient for me not to exercise my enlivened discretion in favour of the Respondent. Again, for the reasons given earlier, the Complainant submits that she is an experienced solicitor with several years of advocacy experience. On the basis of that submission, I can see no reason why I would not exercise my discretion in favour of the Respondent.

• I will not deal with the out of time allegations; and

• I give leave to the Respondent to be represented by private counsel.

• [110] I will list the matter for mention in due course.

1. Pursuant to s 175(2) of the Anti-Discrimination Act 1991, the Commission will not deal with the out of time allegations contained in paragraphs 8 to 53 and 54 to 64 of the Complainant's Statement of Facts and Contentions filed on 22 September 2023.

1. Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the Respondent is given leave to be represented by a lawyer.

[1] Wong v Medical Board of Queensland & Ors [2006] QADT 41, [32] (Member Boddice).

[2] The Respondent contends that the complainant has been absent from OWHSP's workplace since around 1 October 2019 and has been continuously absent from duty since 13 July 2020.

[3] It seems that the Complainant did not return to any duty after this date.

[4] Citing Ryle v State of Queensland (Department of Justice and Attorney General) & Pitt [2021] QIRC 307 ('Ryle'), [121]-[124] (Industrial Commissioner Dwyer).

[8] [2022] ICQ 1.