Boden v State of Queensland (Queensland Health) [2026] QIRC 177

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Boden v State of Queensland (Queensland Health) [2026] QIRC 177 PARTIES: Boden, Victoria (Applicant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: TD/2025/98 PROCEEDING: Application for leave to be represented by a lawyer in certain proceedings in the Commission DELIVERED ON: 22 May 2026 MEMBER: HEARD AT: Merrell DP On the papers ORDER: Pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016, the Respondent is given leave to be represented by a lawyer for this proceeding CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL TRIBUNALS – PROCEEDINGS IN INDUSTRIAL TRIBUNALS – REPRESENTATION OF PARTIES – APPLICATION FOR LEAVE TO BE REPRESENTED BY A LAWYER – the Applicant was employed by the Respondent as a registered nurse and was dismissed by way of her retirement pursuant to s 107(1)(b) of the Public Sector Act 2022 – the Applicant applied for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 contending that her dismissal was unfair – the Respondent contends that its dismissal of the Applicant was fair – the Applicant's application was the subject of Directions Orders made by the Commission for its hearing and determination including by -- 1 of 5 -- 2 the parties filing and serving affidavit material and outlines of argument – the Respondent subsequently made an application in existing proceedings for leave to be represented by a lawyer for reasons that included that such representation would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter, as referred to in s 530(4)(a) of the Industrial Relations Act 2016 – leave given for the Respondent to be represented by a lawyer LEGISLATION: Industrial Relations Act 2016, s 317 and s 530 Public Sector Act 2022, s 107 CASES: Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16 Reasons for Decision Introduction and background [1] Ms Victoria Boden was employed on a part-time basis by the State of Queensland through Queensland Health ('the Department') as a Registered Nurse at the Queen Elizabeth II Jubilee Hospital. [2] On 23 April 2020, Ms Boden submitted a COVID-19 vulnerable employee form identifying her as an employee who was vulnerable to COVID-19 due to a medical condition. Ms Boden requested to work from home. Ms Boden was advised that alternative duties allowing her to work from home had been arranged. Ms Boden commenced working from home on 10 August 2020. [3] On 24 August 2020, Ms Boden submitted a claim for workers' compensation for digital motion sickness arising out of her work from home duties undertaken between 10 August 2020 and 21 August 2020. On 11 May 2021, her application for workers' compensation was approved and she had an accepted workers' compensation claim for digital motion sickness until June 2022. [4] Between February 2021 and November 2022, Ms Boden was required by the Department to submit to medical examinations by four different medical specialists. [5] On 20 July 2023, Ms Boden attended a Functional Capacity Evaluation from which it was concluded that she was considered capable of performing sedentary work on a casual basis. [6] Between September 2023 and March 2024, Ms Boden unsuccessfully attempted two graduated return to work programs. -- 2 of 5 -- 3 [7] On 19 September 2024 Ms Boden, due to her ongoing absence from the workplace, was directed to attend a further medical examination with Consultant Occupational Physician, Dr Nicholas Burke. Dr Burke subsequently reported that Ms Boden would be permanently unable to perform her duties as a Registered Nurse for the Respondent ('Dr Burke's report'). [8] By letter dated 8 November 2024, having regard to Dr Burke's report, Ms Boden was afforded an opportunity to respond as to why she should not be retired, pursuant to s 107(1)(b) of the Public Sector Act 2022, on the ground of ill-health. [9] On 19 May 2025, Ms Boden provided the Department with a report from Consultant Neurologist, Dr Mark Paine, dated 22 January 2025, stating that she suffers from complex vestibular disorder with a component of persistent postural and perceptual dizziness and was fit to resume work without specific restriction. Ms Boden also provided the Department with other medical documents that asserted she was fit to return to work. [10] Following Ms Boden's response given on 2 June 2025, Ms Boden was retired on the ground of ill-health pursuant to s 107(1)(b) of the Public Sector Act 2022 effective from 12 August 2025. [11] By application filed on 2 September 2025, Ms Boden applied for reinstatement ('Ms Boden's application') pursuant to s 317 of the Industrial Relations Act 2016 ('the IR Act'). Ms Boden contends her dismissal was unfair because the Department improperly formed the view that she did not have capacity to perform her role by relying on a medical report that was outdated and which was prepared by a medical professional lacking the relevant expertise about her condition. Ms Boden also contends that the Department ignored the expert medical evidence she provided. The Department contends Ms Boden's dismissal was fair based upon Dr Burke's report and that her redeployment to other non-nursing positions was not viable because of her symptoms. [12] Following directions orders I made on 19 February 2026 about Ms Boden's application, by application filed on 9 April 2026, the Respondent applied, pursuant to s 530 of the IR Act, for leave to be represented by a lawyer at the hearing of Ms Boden's application ('the Department's application'). On 17 April 2026, Ms Boden filed her response by which she opposed the Department's application. [13] The question for my determination is whether I should give leave to the Department to be represented by a lawyer at the hearing of Ms Boden's application. [14] For the reasons that follow, I will give leave to the Department to be represented by a lawyer at the hearing of Ms Boden's application. The relevant provisions of the Industrial Relations Act 2016 [15] The effect of s 530(1)(e) 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), all -- 3 of 5 -- 4 parties consent or, for a proceeding relating to a matter under a relevant provision, the Commission gives leave. [16] Chapter 8, pt 2 ('Dismissals') of the IR Act is a relevant provision for the purposes of s 530(1)(e)(ii) of the IR Act. Consequently, Ms Boden's application is a proceeding relating to a matter under a relevant provision. [17] Section 530(4) of the IR Act relevantly provides: (4) An industrial tribunal may give leave under subsection (1) only if– (a) it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or (b) it would be unfair not to allow the party or person to be represented because the party or person is unable to represent the party's or person's interests in the proceedings; or (c) it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings. The parties' arguments [15] The basis for the Department's application is that the Commission should give it leave to be represented by a lawyer because: • pursuant to s 530(4)(a) of the IR Act, such legal representation would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; and • the complexity in the matter arises because: - there is a complex factual matrix underpinning the proceeding; and - the matter involves competing medical evidence that will require several expert witnesses to give evidence and be cross-examined. [16] The Department further submits that its legal representatives and private counsel can present oral arguments about complex factual matters in a concise manner that will assist the Commission to identify and understand the issues in dispute and deal with those issues efficiently. [17] By her written response, Ms Boden opposes the grant of leave for legal representation because: • the matter does not raise any complex questions of law or fact as the issues are straightforward and concern industrial fairness rather than technical legal arguments; • the Commission is designed to be informal and accessible to employees and employers without expensive legal costs, aiming to resolve disputes quickly and informally; -- 4 of 5 -- 5 • the Department employs human resource professionals who can represent it; and • granting the Department leave would unfairly prejudice her when she cannot afford equal representation, creating an imbalance. Should leave be granted? [18] Section 530(4)(a) of the IR Act requires: • the identification of the complexity of the 'matter', being the controversy the subject of the principal proceeding; and, • the identification of how, having regard to that complexity, having a party represented by lawyers would enable the proceedings to be dealt with more efficiently.1 [19] In my view, this is a case where I should give leave for the Department to be legally represented. [20] A central issue in this case is the determination of Ms Boden's medical fitness for work. There will be a requirement to assess competing expert medical evidence about that issue. For that reason, there will be some complexity in determining whether Ms Boden's dismissal was fair. [21] Dealing with proceedings more efficiently involves effectively using resources and time. The efficient conduct of the proceeding, in respect of the expert medical evidence led and the submissions made about that evidence, would ensue by one of the parties being legally represented. Therefore, my discretion to give leave to the Respondent to be represented by a lawyer is enlivened. [22] I have considered the reasons given by Ms Boden for her opposition to the Department being given leave to be represented by a lawyer. On the facts of the present case, the efficiency to the proceeding brought about by the Respondent being legally represented outweighs any unfairness suffered by Ms Boden not being represented by a lawyer. Therefore, I exercise my discretion in favour of the Department. Order [23] I make the following order: Pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016, the Respondent is given leave to be represented by a lawyer for this proceeding. 1 Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16, [34]-[35] (Davis J, President). -- 5 of 5 --