Corney v State of Queensland (Queensland Health) [2020] QIRC 219

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Corney v State of Queensland (Queensland Health) [2020] QIRC 219 Corney, Amanda (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: TD/2020/2 PROCEEDING: Application for legal representation DELIVERED ON: 15 December 2020 HEARING DATES: 3 December 2020 MEMBER: HEARD AT: Hartigan IC Brisbane ORDERS: 1. I order that: (a) the proper respondent in this proceeding is the State of Queensland (Queensland Health); and (b) leave be granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld). CATCHWORDS: REINSTATEMENT – APPLICATION FOR LEGAL REPRESENTATION – Industrial Relations Act 2016 – Whether Respondent can be represented by a lawyer under s 530 of the Industrial Relations Act 2016 (Qld) – Factors to be considered by the Commission in deciding whether to allow legal representation – -- 1 of 9 -- 2 LEGISLATION: CASES: Circumstances of the case – Leave granted to be legally represented Acts Interpretation Act 1954 (Qld), s 33 Industrial Relations Act 2016 (Qld), s 530 Hospital and Health Boards Act 2011 (Qld), s 20(4), s 67 Hospital and Health Service Regulation 2012 (Qld), s 45, s 47 Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 008 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 Reasons for Decision Introduction [1] The Respondent has filed an application within this proceeding seeking an order pursuant to s 530(1)(d)(ii) of the Industrial Relations Act 2016 (Qld) ("IR Act") that the Respondent be granted leave to be legally represented by counsel and, if leave is necessary, by Crown Law. [2] The Applicant, Ms Amanda Corney, was employed as a Registered Nurse (Nurse Grade 5RN), Surgical Ward 1 at the Townsville Hospital,1 Townsville Hospital and Health Service ("THHS"), on 16 February 1994. [3] On 16 December 2019, Ms Corney was retired from her employment with the THHS, on the grounds of ill health, pursuant to s 178(1) of the Public Service Act 2008 (Qld) ("PS Act"). [4] On 2 January 2020, Ms Corney filed an application for reinstatement, following the termination of her employment, stating that she was unfairly terminated from her position and seeks the remedy of compensation. Ms Corney is being represented by her partner, Mr Corney, who is acting as her agent. [5] Ms Corney objects to leave being granted for the Respondent to be legally represented and raises the following issues for consideration: 1 Now the Townville University Hospital. -- 2 of 9 -- 3 (a) that the proper respondent in this proceeding is the THHS and not the State of Queensland; (b) that Ms Corney is not a "relevant employee" within the meaning of s 45 of the Hospital and Health Service Regulation 2012 (Qld) ("the Regulation"); and (c) leave should not be granted to the Respondent to be legally represented on the basis that it would be unfair to Ms Corney. [6] Section 530 of the IR Act provides the circumstances in which a party to a proceeding may be legally represented. Section 530 relevantly states: 530 Legal Representation … (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 – … (d) 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 -- 3 of 9 -- 4 (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 … Who is the proper respondent to the proceeding? [7] Ms Corney contends that the proper respondent in this proceeding is the THHS and not the State of Queensland. [8] The relevant history of Ms Corney's engagement with the THHS is, as follows: (a) Ms Corney was engaged as a "health service employee" by the THHS under s 67 of the Hospital and Health Boards Act 2011 (Qld) ("HHB Act"); and (b) at the time of the engagement, the THHS was a "prescribed service" for the HHB Act2 and was Ms Corney's employer. [9] Ms Corney's employment was terminated with effect on 16 December 2019. At the time of the termination of her employment, Ms Corney's employer was the THHS. [10] However, on 15 June 2020, amendments to the Regulation came into force. The amendments, amongst other things, removed "prescribed services" from the HHB Act. Section 47 of the Regulation dealt with the effect of the removal of "prescribed services" for proceedings and other things that had commenced before the amendments came into force. Section 47 relevantly provides: 47 Proceedings and other things not affected by persons becoming employees in the department (1) This section applies if, before the commencement— (a) a proceeding— (i) was taken by or against a relevant employee as an employee of the relevant Service; and (ii) was not completed; or (b) a thing, other than a proceeding, was done in relation to a relevant employee as an employee of the relevant Service. (2) If subsection (1)(a) applies, from the commencement— (a) the chief executive is taken to be a party for the proceeding instead of the relevant Service; and 2 By operation of the Hospital and Health Boards Act 2011 (Qld) s 20(4) and the Hospital and Health Service Regulation 2012 (Qld) s 3AA and Sch 1AA. -- 4 of 9 -- 5 Note— See also section 46 of the Act for the power of the chief executive to delegate the chief executive’s functions under the Act. (b) the proceeding may be continued and completed by or against the chief executive instead of the relevant Service. (3) If subsection (1)(b) applies, the thing done in relation to the relevant employee is not affected by the change to the relevant employee’s employment under section 45(2). Examples for subsection (3)— 1 A recruitment and selection process involving a relevant employee started before the commencement may continue from the commencement. 2 The approval of the annual leave for a relevant employee before the commencement is effective from the commencement. [11] Section 47 is relevant to this proceeding, in so far as the proceeding was commenced against the THHS before 15 June 2020.3 [12] Section 47 provides that the employer of a health service employee4 is now the Chief Executive of the Department. Section 33(7) of the Acts Interpretation Act 1954 (Qld) provides that, inter alia, "the department" is the department of government that deals with the relevant matter. In this proceeding, the relevant department is Queensland Health. Queensland Health is a department of the State of Queensland. [13] Accordingly, by operation of s 47 of the Regulation, the proper respondent to the proceeding is the State of Queensland (Queensland Health). I will amend the title of this proceeding to reflect the proper respondent. [14] Ms Corney further contends that she is not a "relevant employee" for the purpose of s 45(1) of the Regulation, and argues that, consequently, THHS remains the proper respondent in this proceeding. [15] Section 45 of the Regulation relevantly provides: 45 Particular health service employees to be employed by chief executive (1) This section applies to a health service employee, other than a health executive or senior health service employee, who was employed by the relevant Service immediately before the commencement (a relevant employee). (2) From the commencement, the relevant employee is taken to be employed by the chief executive, in the department, on the same terms, conditions and entitlements as those applying to the employee's employment by the relevant Service immediately before the commencement. 3 The Application was filed on 2 January 2020. 4 Other than a health executive or senior health service employee. -- 5 of 9 -- 6 (3) Without limiting subsection (2), the following matters apply in relation to the change to the relevant employee’s employment mentioned in that subsection— (a) the employee retains, and is entitled to, all rights, benefits and entitlements that have accrued to the employee because of the employee's employment as a health service employee by the relevant Service; (b) the employee's accruing rights, including to superannuation or recreation, sick, long service or other leave, are not affected; (c) the employee's continuity of service is not interrupted, except that the employee is not entitled to claim the benefit of a right or entitlement more than once in relation to the same period of service; (d) the change to the employee's employment does not constitute a termination of employment or a retrenchment or redundancy; (e) the employee is not entitled to a payment or other benefit because the employee is no longer employed by the relevant Service. (4) Subject to this section, the chief executive may issue a direction to the relevant employee to facilitate the transition of the employee's employment from the relevant Service to the chief executive. Note— See also the Public Service Act 2008, section 187(1)(d). (5) If the relevant employee was, immediately before the commencement, employed by the relevant Service under a contract, the employee is taken to be employed by the chief executive, in the department, under the contract. [16] Ms Corney contends that, as her employment with the health service was terminated in December 2019, she was not employed by the relevant service immediately before the commencement. Ms Corney maintains as a result, the THHS is the proper respondent to the proceeding. [17] I do not accept Ms Corney's submission that the operational effect of s 45 of the Regulation is that the THHS remains the proper respondent in this proceeding. [18] Section 45 applies to relevant employees who were employed by the health service immediately before the commencement. Upon commencement, those employees became employees of the chief executive of the department. Section 45 operates to maintain the continuity of employment on the same terms and conditions and to preserve the employee's accrued entitlements from their employment with THHS. Accordingly, s 45 is not relevant to Ms Corney, as her employment with the THHS ceased before the commencement. [19] Section 47 specifically deals with proceedings instituted before the commencement taken by or against a relevant employee as an employee of the Service. Ms Corney falls within s 47 as she commenced a proceeding before the commencement against the THHS as an employee of the Service. Section 47 is a transitional provision that enables Ms Corney to continue with the proceedings commenced against THHS in circumstances where the -- 6 of 9 -- 7 THHS no longer exists as a "service provider" under the HHB Act. Section 47 of the Regulation, benefits Ms Corney as it enables her to continue the proceedings and to seek relief against the State of Queensland. Application for legal representation [20] Ms Corney contends that it would be unfair if the Respondent were permitted to be legally represented. [21] The Respondent has indicated that it seeks to be legally represented by Crown Law and represented by counsel. [22] In respect of the representation by Crown Law, there is no requirement for the Respondent to seek leave of the Commission to be represented by Crown Law, by operation of s 530(5)(a) of the IR Act. [23] Section 530(5) provides that where a lawyer is an employee or officer of a party, that party may be represented by the lawyer and the restrictions in the preceding sub-sections do not apply.5 [24] The lawyers engaged by Crown Law, a business unit of the Department of Justice and Attorney-General, are employees of the State of Queensland and consequently, pursuant to s 530(5) of the IR Act, the lawyers at Crown Law are entitled to appear in the proceeding for the State of Queensland. [25] The Respondent also seeks leave to be legally represented in this proceeding.6 Ms Corney objects to the Respondent being given leave to be legally represented in this proceeding. Ms Corney contends that it would be unfair if the Respondent were legally represented. [26] 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. [27] In Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 ("Wanninayake"), it was held that the decision by the Applicant not to 5 Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 008, [39]. 6 The Respondent intends to instruct counsel to appear in the proceeding. -- 7 of 9 -- 8 engage legal representation, did not mean that the Respondent should be denied the opportunity to efficiently present its case through legal representation. [28] In this matter, Ms Corney has decided to be represented by her husband, Mr Corney, who is acting as her agent. That decision made by Mr Corney should not mean that the Respondent be denied legal representation in and of itself. [29] Further, in Winninayake, it was held that legal representation can assist the Commission in relation to matters involving points of law and skilful cross-examination of witnesses can only assist the Commission in determining the matters it has to decide. In Winninayake, Neate IC relevantly noted, stated: …Competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real issues of fact and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced (whether by examination in chief or cross examination and by the tendering of relevant documents), and that submissions are confined to the matters which the Commission must decide. [30] Ms Corney has filed a Statement of Facts and Contentions which identifies a number of issues of both fact and law. [31] Ms Corney contends that she has been unfairly dismissed on the basis that the medical evidence does not establish that she was permanently unable to perform clinical duties as a Registered Nurse. The proceedings will require a detailed examination of the evidence of the relevant witnesses concerning the appropriateness of multiple attempts to return Ms Corney to the workplace and medical evidence and opinion from several independent medical examinations. I consider that the nature and complexity of the subject matter is such that the parties would benefit from the presence of legal representation in the proceedings and such a presence will not result in unfairness to Ms Corney. [32] I am also satisfied that granting leave is likely to shorten, rather than expand, the length of the trial, and, consequently, reduce the ultimate potential cost of the matter proceeding to hearing for both parties. [33] I note the Respondent's responsibility to act as a model litigant in accordance with the Model Litigant Principles. I am satisfied that this responsibility, together with the Commission's conduct of the proceedings, will ensure that no disadvantage is suffered by Ms Corney as a result of the Respondent being legally represented in the proceedings. Conclusion [34] For the reasons outlined above, I have concluded that: (a) the proper respondent in this proceeding is the State of Queensland (Queensland Health); -- 8 of 9 -- 9 (b) the Respondent is entitled to be represented by lawyers engaged by Crown Law, pursuant to s 530(5) of the IR Act; and (c) leave be granted for the Respondent to be legally represented in this proceeding, pursuant to s 530(4) of the IR Act. [35] I make the following orders: 1. The proper respondent in this proceeding is the State of Queensland (Queensland Health). 2. Leave be granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld). -- 9 of 9 --