French v Bundaberg Regional Council [2023] QIRC 214

Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079

[1] The Applicant, Mr Michael French, has filed an application for reinstatement, seeking, inter alia, reinstatement to his former position ('the proceeding').

[2] The Respondent, Bundaberg Regional Council ('the Council'), has applied for orders that it be granted leave to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act').

[3] Mr French objects to leave being granted for the Council to be legally represented.

[4] Mr French commenced employment with the Council on 3 October 2005, and his employment was terminated on 7 October 2022.

[5] By letter dated 29 August 2022, the Council put an allegation, associated with alleged disparaging and inappropriate comments made by Mr French on Facebook about the Council, to Mr French for his response.

[6] On 7 October 2022, Mr French provided a response.

[7] On 7 October 2022, following receipt of a response from Mr French, the Council determined to terminate Mr French's employment.

[8] On 27 October 2022, Mr French filed an application for reinstatement in the Industrial Registry. Mr French is represented by his agent, The Australian Workers' Union of Employees, Queensland ('the AWU'), in the proceedings having filed an Appointment of Agent form on 19 April 2023.

[9] On 21 June 2023, the Respondent filed a Form 101 Application ('Application') and supporting affidavit seeking leave to be legally represented.

[10] On 30 June 2023, Mr French, through the AWU, filed a Form 102 Response ('Response') and supporting affidavit objecting to the Council's application for legal representation.

[11] The Commission issued directions for the parties to file further submissions with respect to the Council's Application.

[12] The question for my determination is whether leave should be granted for the Council to be legally represented in the proceeding.

[13] Section 530 of the IR Act provides for legal representation in the following terms:

• (1) A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if -

(e) for other proceedings before the commission, other than the full bench - > > > (i) all parties consent; or > > > > (ii) for a proceeding relating to a matter under a relevant provision - the commission gives leave; or

• (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.

Examples of when it may be unfair not to allow a party or person to be represented by a lawyer -

• a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy
• a person is from a non-English speaking background or has difficulty reading or writing

• (5) For this section, a party or person is taken not to be represented by a lawyer if the lawyer is -

(a) an employee or officer of the party or person; or > > (b) an employee or officer of an entity representing the party or person if the entity is - > > > (i) an organisation; or > > > > (ii) a State peak council; or > > > > (iii) another entity that only has members who are employers.

industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.

(a) means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and

(b) includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.

relevant provision, for a proceeding before the commission other than the full bench means -

(a) chapter 8; or

(b) section 471; or

(c) chapter 12, part 2 or 16.

Should leave be granted for the Respondents to be legally represented?

[14] The discretion to grant leave for a party to be legally represented is outlined in s 530(4) of the IR Act. The Commission may grant leave 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.

[15] In its submissions, the Council notes that the proceeding gives rise to the following matters of factual and legal complexity:

a) in interpreting and applying the Local Government Act 2009 (Qld) ("LGA") and Local Government Regulation 2012 (Qld) ("LGR") regarding provisions that are not yet settled, but not necessarily limited to, section 283 of the LGR;

b) the extent to which the Respondent's notice of the grounds for taking of disciplinary action complied with s 283 of the LGR;

1. whether Mr French failed to perform his responsibilities under the LGA by breaching the Respondent's Code of Conduct under the Public Sector Ethics Act 1994 when making various statements on Facebook;

d) the relevance and weight to be given to the Applicant's disciplinary record in the period between March 2022 and August 2022;

f) the unsuitability of reinstatement or re-employment in the context of the trust and confidence that the Respondent has in the Applicant and the Respondent's obligations and industrial circumstances.

[16] The Council submits that if it is granted leave to be legally represented in the proceeding, it will assist the Commission "in efficiently dealing with the application by narrowing the issues in dispute, preparing concise and relevant evidence and submissions, testing the evidence by examining evidence, and aiding the Commission in identifying and applying relevant legal principles".

[17] In his submissions, Mr French "strongly rejects" the Council's contention that granting the Council legal representation will enable the proceedings to be dealt with more efficiently. Further, Mr French submits that the Statement of Facts and Contentions filed by the Council has "proffered arguments that seemingly have the intent to obfuscate, complicate or otherwise widen the issues in dispute".

[18] In support of his position, Mr French filed an affidavit sworn on 30 June 2023 and raises further matters for the consideration of the Commission:

(a) that the Council already have two internal legal officers who are "capable of adequately representing" it;

(b) that this matter does not involve "issues of sufficient complexity as to warrant" the Council being legally represented;

(c) that the Commission will not be assisted in "reaching a more expeditious, efficient or fair outcome" in determining the matter if the Council is granted leave to be legally represented; and

(d) that the Council have "sought to misrepresent [Mr French's] industrial rights" by alleging in its Statement of Facts and Contentions that Mr French failed to invoke the dispute resolution clause in accordance with the Bundaberg Regional Council Certified Agreement 2021.

[19] In its reply submissions, the Council "strongly rejects" Mr French's contention that its Statement of Facts and Contentions intends to "obfuscate, complicate or otherwise widen the issues in dispute" and contends that it seeks to "legitimately raise issues" in response to Mr French's application for reinstatement.

[20] The Council further emphasises in its reply submissions that granting the Council leave to be legally represented would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter.

[21] In State of Queensland (Department of Premier and Cabinet) v Dawson[1], his Honour O'Connor VP referred to the involvement of legal representation and the efficient conduct of litigation, and the consideration of those matters in various authorities as follows:

1. The involvement of Counsel in the efficient conduct of litigation was expressed in Application by R.A.v where Deputy President Sams wrote:

[18] Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner's professional obligations to the Commission and the Courts. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith:

[A] barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.

[19] More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd said at para [48]:

A lawyer's duty to the Commission is paramount and supercedes a lawyer's duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission.

[20] Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission's powers and functions. In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved. I agree with what was said by the Full Bench in Priestley:

[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions

[22] It is clear on Mr French's own submissions that he currently contends that the Council raises matters in its Statement of Facts and Contentions that widen and complicate the matters in dispute between the parties. I consider that the involvement of legal representatives on behalf of the Council will assist to corral the issues in dispute. Unlike a lay advocate, lawyers have certain professional obligations to the Commission. In this regard, there is a presumption that any legal representative appearing will act in a manner that will aid in the efficient administration of justice.

[23] I consider that the matters raised by Mr French with respect to the Respondent's Statement of Facts and Contentions and his concerns with respect to the widening and complicating of issues is a matter which weighs in favour of the exercise of discretion.

[24] The Council submits that it would be unfair not to grant the Council leave to be legally represented, especially in circumstances where the Council's internal HR Operations Team and Legal Team:

a) do not have the experience necessary to adequately prepare the Respondent's defence of the litigation; and

b) do not have the operational capacity to adequately prepare the Respondent's defence of the litigation.

[25] In support of its position, the Council relies on an affidavit of Ms Christine Large, Chief Legal Officer for the Council sworn on 20 June 2023.

[26] In her affidavit, Ms Large is of the view that in order for the Council to "properly" prepare and present its case before the Commission, it would require external legal representation. In support of her position, she raises the following issues, as relevantly summarised:

(a) due to the volume of work allocated to its Legal Team, which consists only of two full time positions, it does not "have the capacity to manage litigation of the type contemplated in these proceedings";

(b) its legal officers are "not experts in employment law" and "have no experience in representing a party in a hearing before the Commission"; and

(c) the Council's HR Operations Team do not have team members with the requisite experience in managing litigation of this nature nor does the team have the capacity to manage the matter.

[27] The Council also notes in its submissions that it may be a possibility that Mr Troy Daniels, Manager, HR Operations Team, will be called as a witness due to his involvement in the disciplinary process for Mr French, "making it inappropriate for him to also represent" the Council.

[28] The Council further submits that allowing it to be legally represented will ensure that it is not at a disadvantage because Mr French's representative is an experienced industrial advocate.

[29] In Mr French's affidavit he expresses the view that it will be unfair if the Commission were to grant the Council's application for legal representation. In support of his position, Mr French raises the following matters, as relevantly summarised:

(a) that the Council will have "vastly greater resources and man power" compared to him and will "be able to better research and articulate and persecute its case";

(b) that the Council may "further outsource this matter to another legal professional who specialises in Court advocacy" which is something Mr French "cannot match with [his] own specialty legal advocate" due to his financial situation; and

(c) that the Council have "unfairly presupposed" that his industrial representative possesses the same requisite level of litigation experience as the Council's legal representatives when "this is not in fact so".

[30] In these circumstances, Mr French submits that he will be unfairly disadvantaged with respect to his "ability and capacity to resource this matter before the Commission" if the Council is granted leave to be legally represented.

[31] It its reply submissions, the Council contends that Mr French has not provided any "compelling" evidence to support his assertion that:

(a) the Council's internal legal officers likely have the requisite skills and expertise to represent the Council in this matter; and

(b) Mr French's industrial representative does not have the same litigation experience as the Council's legal representatives.

[32] Firstly, it is difficult to accept Mr French's submissions that his representative, the AWU, does not have the "requisite level of litigation experience" or adequate resources. The AWU is a registered industrial organisation and appears regularly before the Commission appearing on its own behalf and on behalf of its members. It is a sophisticated industrial advocate in this forum.

[33] Further, in Wanninayake v State of Queensland (Department of Natural Resources and Mines),[2] Neate IC determined that the decision by an Applicant to not engage legal representation did not mean that the Respondent should be denied the opportunity to engage legal representation and relevantly held:

... competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real questions of facts and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced (whether by cross examination and by examination in chief, or the tendering of relevant documents), and that the submissions are confined to matters which the Commission must decide.[3]

[34] I consider Mr French has had the benefit of choosing to be represented by the AWU in this proceeding. That choice should not deny the Council an opportunity to be legally represented, particularly in circumstances where the Council submits it does not have an adequate in house skill composition to represent itself.

[35] I consider the fairness of permitting the Council to be legally represented is a further matter that weighs in favour of the exercise of the discretion.

[36] For the above reasons, I have concluded that leave be granted for the Council to be legally represented in this proceeding.

Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).

[1] [2021] QIRC 118.

[2] [2014] QIRC 079.

[3] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079,7.