Baker v State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) [2016] QIRC 73

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Baker v State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) [2016] QIRC 073 PARTIES: Craig Baker (Applicant) V State of Queensland, Department of Justice and Attorney-General, (Queensland Corrective Services) (Respondent) CASE NO: TD/2015/50 PROCEEDING: Application for Legal Representation DELIVERED ON: 14 July 2016 HEARING DATES: 1 June 2016 (Mention) 22 June 2016 (Hearing) HEARD AT: Brisbane (1 and 22 June 2016) MEMBER: Deputy President Swan ORDERS [1] The Application by State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) to be legally represented is granted. CATCHWORDS: UNFAIR DISMISSAL - APPLICATION FOR LEGAL REPRESENTATION - Industrial Relations Act 1999 - Whether Respondent can be represented by a lawyer under s 319 - Application opposed - Commission's discretion - Factors to be considered by the Commission in deciding whether to allow legal representation - Leave granted to be legally represented. CASES: Industrial Relations Act 1999 Information Privacy Act 2009 (Qld) -- 1 of 6 -- 2 APPEARANCES: Mr C. Baker, the Applicant. Mr J. Merrell, Counsel for the State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services). Decision [1] This Application relates to Legal Representation being sought by the State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) (the Respondent) pursuant to s 319 of the Industrial Relations Act 1999 (the Act). Mr Craig Baker (the Applicant) seeks reinstatement to his formerly held position of Custodial Correctional Officer with the Respondent. [2] At the Mention of the matter, Mr Baker rejected the Respondent’s request to be legally represented at the reinstatement hearing. During discussions with the Respondent prior to the matter proceeding to hearing, Mr Baker had been dealing with a legally qualified employee of the Respondent. Mr Baker was content for that person to continue to represent the Respondent, but did not accept that the Respondent should be permitted to use "outside" Counsel. However, at the time of the Mention, that perspective changed and Mr Baker was opposed to any legal representation on the part of the Respondent. [3] For the purpose of determining this Application only, the Applicant did not object to Mr Merrell of Counsel, representing the Respondent. Background Information [4] Mr Baker was first employed by the Respondent in March 2014. In June 2014, he was engaged as a Custodial Correctional Officer at the Brisbane Correction Centre. This employment followed a recruitment process being undertaken by the recruitment agency, HOBAN Recruitment. Prior to this, Mr Baker had been employed by the Australian Federal Police. [5] After a period of time, the Respondent queried whether Mr Baker had been truthful in responding to questions put to him by HOBAN Recruitment regarding his disciplinary history with the Australian Federal Police. [6] Upon acquiring information about matters concerning Mr Baker and the Australian Federal Police, the Respondent issued Mr Baker with a "show cause" notice. The Respondent’s submissions [7] It is the nature of the claims being made by Mr Baker which the Respondent says causes it to require legal representation. [8] A particular claim relates to Mr Baker’s assertion that the Respondent has unlawfully gained information concerning him from the Australian Federal Police. -- 2 of 6 -- 3 [9] Another claim relates to Mr Baker’s assertion that his dismissal was for an "invalid reason" by the Respondent in that the Respondent breached the Information Privacy Act (Qld) in contravention of s 73(2)(e) of the Act. [10] The Public Service Act 2008 provides power for a chief executive to terminate or take disciplinary action against an officer and generally that relates to the officer’s conduct, capacity or performance during the course of their employment. The Respondent says that there is no specific power under the Public Service Act 2008 which deals with the particular circumstance where the officer’s employment is terminated (or disciplinary action taken) prior to that person becoming an officer of the public service. [11] The Respondent says that the question of law to be determined is whether: "the Public Service Act is a Code or does the Respondent have the ability under its ordinary common law powers, as an employer to terminate the contract of employment because of Mr Baker’s prior employment conduct". [12] The Respondent submitted that special circumstances existed such as to warrant legal representation on its part. The fact that Mr Baker chose to represent himself was, in the Respondent’s view, a matter for him. [13] The Respondent says that while Mr Baker believes that his claim is not complex in nature, it clearly is. Mr Baker’s submissions [14] Mr Baker set out the reasons for his rejection of the Respondent’s Application to be legally represented:  "The Applicant is unrepresented and already at a significant disadvantage to the State of Queensland and all of its resources;  The Respondent has conceded that it has employees within the Department of Justice and Attorney-General who have experience in managing industrial advocacy matters;  The amount of monetary compensation that could be awarded in lieu of, or addition to, reinstatement is relatively small;  The alleged provision of false or misleading information is limited to a 1-page document and a single telephone call;  The Respondent’s witnesses are only relevant to peripheral matters;  The Applicant is the only witness in his case; and  The issues to be decided by the Commission are of limited scope." [15] Added to those reasons, Mr Baker believed that he would be unable, legally, to discuss events which occurred during his employment with the Australian Federal Police. -- 3 of 6 -- 4 [16] Mr Baker stated that the he would be at an unfair advantage if the Respondent was allowed legal representation at the hearing. He also claimed that there could be a risk that the matter would be made overly complicated and costly with the involvement of a legally trained representative. Relevant Legislation [17] Section 319(1) of the Act provides: "(1) In proceedings, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by – (a) an agent appointed in writing; or (b) if the party or person is an organisation - an officer or member of the organisation." [18] Section 319(2) of the Act provides that: "(2) The party or person may be represented by a lawyer if, and only if – … (b) for proceedings before the commission, other than proceedings under section 278 or 408F – … (ii) all parties consent; or (iii) the proceedings relate to a matter under chapter 3, or under section 275, 276 or 279 or under chapter 12, part 2 or part 16 and, on application by a party or person - (A) The Commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances that make it desirable for the party tor person to be legally represented; of (B) The Commission is otherwise satisfied that it is desirable for the party or person to be legally represented." [19] Section 319(4) sets out the type of matters the Commission may consider in relation to s 319(2)(b)(iii) in exercising its discretion: "(a) the amount claimed in the proceedings, if any; (b) the nature and complexity of the matter; (c) the nature of the evidence to be adduced; (d) the cross-examination likely to be required; -- 4 of 6 -- 5 (e) the capacity of the party or person to represent himself or herself; (f) the questions of law likely to arise; (g) whether the duration or cost of the proceedings will be decreased or increased if the party or person is represented. Respondent documents provided to the Commission [20] The Respondent provided documents to the Commission prior to the hearing of this application. Those documents included the following:  The Application for Legal Representation filed by the Respondent on 10 June 2016.  An affidavit of Mr Stuart Woods (Director, Human Resources - Justice and Attorney-General) filed by the Respondent on10 June 2016.  "Model Litigant Principles".  Correspondence from the Respondent and Mr Baker relating to the "show cause" notification.  Copy of a document from the Australian Federal Police (Professional Standards).  Copy of documents from HOBAN Recruitment. Consideration of Submissions and Conclusion [21] The issues to be considered in the reinstatement hearing as outlined by the Respondent relate to questions of law. I consider that those matters generally raise some complex legal issues. [22] By way of example, the Respondent has raised the issue as to whether there is any specific power under the Public Service Act 2008 to consider a situation where an officer’s employment has been terminated/or disciplinary action taken because of their conduct prior to them becoming an officer of the Public Service. This issue raises unusual circumstances and the Commission would be assisted by receiving relevant legal submissions. [23] Likewise, the Applicant’s assertion that his dismissal was for "invalid" reason requires submissions which would traverse legal principles. Further issues, in similar vein, include the claim that the Respondent has breached the Information Privacy Act 2009 (Qld) in contravention of s 72(2)(e) of the Act. [24] The Commission will be considerably assisted by having submissions and evidence which appropriately identifies and considers those legal issues. [25] While the Department of Justice and Attorney-General has personnel who are experienced in industrial advocacy, I accept the Respondent's claim that the legal components of this matter require the involvement of a legal representative for the purpose of ensuring that the Commission receives appropriate submissions on relevant points of law. -- 5 of 6 -- 6 [26] I have accepted the Respondent's claim that the witnesses it seeks to call will provide, arguably, more than peripheral evidence: Ms McDermitt, is the Decision-Maker; Mr Casey, is the Human Resources Manager in Queensland Corrective Services and his evidence will go to questions of procedural fairness; Mr Hollis is the Human Resources Director of the Department of Justice and Attorney-General and his evidence will relate to the nature of the relationship between the Department and HOBAN Recruitment. [27] While the amount claimed in these proceedings is not large, that is outweighed by the nature and the complexity of the matter. The type of evidence to be adduced and the cross-examination envisaged in a matter of this type has been considered by the Commission to be notably more complex than usual reinstatement applications. [28] Mr Baker has sought to represent himself and believes that he can do so satisfactorily. That of itself does not prevent the Respondent from seeking to be legally represented in this matter. [29] Mr Baker was concerned that the Respondent was seeking to intimidate him by the use of legal representation and that he was at a disadvantage because of this. In my view, the complexity of the matters raised by Mr Baker in his Application for Reinstatement do not lead me to the conclusion that the Respondent’s actions are questionable in this regard. [30] I am satisfied that having regard to the matters raised in the Application for Reinstatement, there are special circumstances that make it desirable for the Respondent to be legally represented. [31] The matter is set for Hearing on 12, 13 and 14 September 2016. [32] Leave is granted to the Respondent to be represented by a lawyer of its choosing. [33] Order accordingly. -- 6 of 6 --