Drage v State of Queensland (Queensland Health) [2022] QIRC 173

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Drage v State of Queensland (Queensland Health) [2022] QIRC 173 PARTIES: Drage, Steven (Applicant) v State of Queensland (Queensland Health) (Respondent) CASE NO: TD/2022/65 PROCEEDING: Application to be legally represented DELIVERED ON: 23 May 2022 MEMBER: HEARD AT: Hartigan IC On the papers ORDER: Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld). CATCHWORDS: LEGISLATION: APPLICATION FOR REINSTATEMENT- APPLICATION FOR LEGAL REPRESENTATION - Industrial Relations Act 2016 – where respondent has applied for leave to be legally represented – where applicant opposes application– factors to be considered by the Commission in determining whether to allow legal representation – circumstances of the case – where leave is granted for legal representation Industrial Relations Act 2016 (Qld), s 530 CASES: State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118 -- 1 of 9 -- 2 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 Reasons for Decision Introduction [1] The Applicant, Mr Steven Drage, has filed an application for reinstatement, seeking, inter alia, reinstatement to his former position ('the proceeding'). [2] The Respondent, the State of Queensland (Queensland Health) ('the Department'), has applied for orders that it be granted leave to be legally represented pursuant to s 530(1)(d)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). [3] Mr Drage objects to leave being granted for the Respondent to be legally represented. [4] Mr Drage commenced employment with the Department on 7 June 2017, and his employment was terminated on 10 February 2022. On 11 September 2021, in response to the coronavirus pandemic and the declaration of a public health emergency, the Department issued the Health Employment Directive – Employee COVID-19 vaccination requirements ('the Directive'), which required current and prospective employees of the Department, who fell within certain categories of employee cohorts to receive a first dose of a COVID-19 vaccine by 30 September 2021 and a second dose by 31 October 2021 and to provide evidence of vaccination to their line manager within seven days of receiving the vaccine, unless the employee had a valid exemption. [5] On 30 September 2021, Mr Drage applied for an exemption from compliance with the Directive on the grounds of other exceptional circumstances. On 25 October 2021, Mr Drage was advised that his application for an exemption had been denied. Mr Drage requested an internal review of this decision on 9 November 2021. On 24 November 2021, Mr Drage was advised that the original decision had been confirmed and that his exemption application had been denied. Mr Drage was also directed to receive the required dose of a COVID-19 vaccine and provide written confirmation of receipt of the vaccine within seven calendar days. [6] By letter dated 16 December 2021, Mr Drage was suspended from duty on normal remuneration pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld). This letter also put the following allegation to Mr Drage: Allegation: Between 11 September 2021 and 8 November 2021, you did not provide the Health Service with evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine. ('the allegation'). -- 2 of 9 -- 3 [7] On 18 January 2022, the Department substantiated the allegation and invited Mr Drage to show cause as to why his employment should not be terminated. [8] On 10 February 2022, following receipt of a response from Mr Drage, the Department determined to terminate Mr Drage's employment. [9] On 4 March 2022, Mr Drage filed an application for reinstatement in the Industrial Registry. [10] On 12 May 2022, the Respondent filed an application seeking leave to be legally represented pursuant to s 530(1)(d)(ii) of the IR Act. [11] On 17 May 2022, Mr Drage, through his representative, although there has been no written appointment, advised the Industrial Registry that he objected to the Respondent's application for legal representation. The Commission issued directions for the Applicant to file submissions in response to the application. [12] On 20 May 2022, Mr Drage filed written submissions in response to the application and raises the following issues, relevantly summarised, for consideration: (a) the named Respondents in the application have multiple skillsets and highly adequate legal, medical, and human relations qualifications to be able to represent themselves in this matter; (b) the Respondents have worked in legal matters of contractual employment disputes and have also been involved in negotiating terms of such agreements under which the Applicant was employed; (c) having regard to such qualifications, skills and years of experience and involvement in the Applicant's termination of employment, it cannot be said that the Respondents: (i) would not be efficient; (ii) would not be well versed in the complexities of the proceedings; (iii) would not be able to represent themselves effectively; (iv) could not provide expert medical and scientific advice in relation to the safety and efficacy of the COVID-19 vaccine; and (v) would face an unfair proceeding if leave was not granted by the Commission. -- 3 of 9 -- 4 [13] The Applicant submits that it would be a 'misuse of Government funds' for the Respondents to be represented as the Respondents all have experience skills and qualifications to handle the proceedings and have handled the matter to date. The Applicant has referred to s 7(c) of the Public Sector Ethics Act 1994 (Qld) in this regard. [14] The Applicant also submits that the Respondent would be ineligible for representation, having regard to the examples set out in s 530(4) of the IR Act. [15] The question for my determination is whether leave should be granted for the Department to be legally represented in the proceedings. Relevant legislation [16] Section 530 of the IR Act provides for legal representation in the following terms: 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) 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 -- 4 of 9 -- 5 (ii) an association of employers that is not registered under chapter 12; or (iii) a State peak council.- (7) In this section – industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court. proceedings – (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 Department to be legally represented? [17] 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. Efficiency and complexity [18] The Department submits that allowing it to be legally represented will enable the proceedings to be dealt with more efficiently, because: (a) the factual and legal complexities before the Commission, having regard to the reasons as to why the Applicant alleges his dismissal was unfair, would be more efficiently resolved by the parties placing relevant and precise matters of fact before the Commission and having the involvement of lawyers and counsel would ensure that evidence presented to the Commission is done so with care and precision; (b) the Applicant appears to intend to challenge the validity of the COVID-19 vaccine and if so, the Commission may need to make findings in respect of expert medical evidence; -- 5 of 9 -- 6 (c) there are a number of recent case authorities whereby leave has been granted, inter alia, on the basis that counsel, and experienced solicitors assist the Commission by enabling the proceedings to be dealt with more effectively;1 and (d) representation in this matter would not bring any burden of unnecessary formality.2 [19] The Applicant submits that the named Respondent has all the necessary skills and qualifications to be able to represent themselves in this matter. [20] In State of Queensland (Department of Premier and Cabinet) v Dawson3, 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: 22. 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 1 Robertson v McDonald’s Australia Limited [2022] ICQ 007; State of Queensland (Queensland Health) v Hume [2022] ICQ 001; and State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118. 2 Artery v G Case & H Case T/A Gavin Case Marine Services [2021] FWC 4130, [23]. 3 [2021] QIRC 118. -- 6 of 9 -- 7 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 (citations omitted). [21] I am of the view that there are potential complex issues associated with the disputed facts in this matter. The material filed to date, also raises several potential complex legal matters. [22] The Applicant's application for reinstatement refers variously to issues, seemingly pertaining to alleged disability discrimination, breaches of obligations under the Human Rights Act 2019 (Qld), breach of employment contract and non-compliance with 'Work Health and Safety Laws'. [23] The Respondent's Employer Response4 is a lengthy statement of some 733 pages in length. Attached to the Employer Response are documents sent between the parties during the show cause process. A perusal of these documents reveals factual matters of some complexity. [24] Whilst it is accepted that the proceeding is in the pre-liminary stage, the Applicant's submission indicates that at least eight witnesses are potentially relevant to the proceeding. [25] Consequently, I am of the view that the Commission will be assisted by the Respondent being legally represented. [26] I consider that if one of the parties is legally represented, that it will assist the Commission to ensure that the proceedings remain focused on the real issues of fact and law, that the distinction between evidence and submissions is observed, that witnesses are skilfully cross-examined, that the evidence is properly adduced and that the submissions are confined to the matters that the Commission must decide. Fairness [27] The Respondent relies on Atkins v Brisbane City Council5 and submits that the fact that the Applicant is not legally represented (although is represented by an agent) does not mean the Respondent should be denied the opportunity to efficiently present its case. 4 Filed on 21 March 2022. 5 [2020] QIRC 176. -- 7 of 9 -- 8 [28] The Respondent acknowledges that it employs several officers who have industrial and advocacy experience but notes that the Respondent is facing a large number of reinstatement applications made by individuals who were dismissed on similar grounds as the Applicant and contends that it would not be fair for the Respondent to 'navigate the proceedings without legal representation.' [29] The Respondent further submits that its legal representatives are bound by the model litigant principles and that the Respondent, through its lawyers and counsel would conduct themselves in a manner that 'exemplifies the principles of justice'. [30] The Applicant submits the components of fairness are 'interrelated and bound by balancing the components inclusively'. The Applicant relies on the following statement from Sun Zhan Qui v Minister for Immigration and Ethnic Affairs6 in this regard: First the objectives referred to in sub-s 420 (1) will often be inconsistent as between themselves. In particular, a mechanism of review that is "economical, informal and quick" may well not be "fair" or "just". [31] The Applicant further submits that granting leave for the Respondents to be legally represented in these proceedings 'will not provide any additional weight to the components of fairness given their combined skill set and experiences in all realms of the case.' [32] In Wanninayake v State of Queensland (Department of Natural Resources and Mines),7 Neate IC determined that the decision by an Applicant to not engage in 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.8 [33] Whilst the Applicant contends that he 'seeks a fair and just result to the proceedings and as such opposes the Respondent's application…', the Applicant does not identify, why, in the circumstances of his matter, it would be unfair to grant leave for the Respondent to be legally represented. [34] I consider that the balancing of fairness between the parties can be aided through proper case and court room management. It is the responsibility of the Commission to ensure that its practice and procedures are adhered to in order to facilitate the just resolution of 6 [1997] FCA 324 per Lindgren J. 7 [2014] QIRC 079. 8 Ibid, pg 7. -- 8 of 9 -- 9 disputes according to law as quickly, inexpensively and efficiently as possible and to ensure that parties are dealt with justly and fairly. Conclusion [35] For the above reasons, I have concluded that leave be granted for the Respondent to be legally represented in this proceeding pursuant to s 530(4) of the IR Act. Order Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld). -- 9 of 9 --