Clements v Phillips [2022] QIRC 52

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Clements v Phillips [2022] QIRC 052 PARTIES: Clements, Chandra (Complainant) v Phillips, Darren (Respondent) CASE NO.: AD/2021/67 PROCEEDING: Application in existing proceedings for the Respondent to be represented by a lawyer DELIVERED ON: 23 February 2022 MEMBER: HEARD AT: Merrell DP On the papers ORDER: The Respondent's application in existing proceedings to be represented by a lawyer is dismissed. CATCHWORDS: HUMAN RIGHTS - DISCRIMINATION LEGISLATION - GENERALLY - complainant performed work for a company - complainant made complaint to the Queensland Human Rights Commission alleging she had been the subject of unlawful discrimination and other unlawful conduct in contravention of the Anti-Discrimination Act 1991 - complaint referred to the Queensland Industrial Relations Commission - complaint yet to be the subject of conciliation before the Queensland Industrial Relations Commission - respondent made application in existing proceedings for leave to be represented by a lawyer on the basis that such representation would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter within the meaning of s 530(4)(a) of the Industrial Relations Act 2016 - Commission not persuaded that giving such leave to the respondent would enable the proceedings to be -- 1 of 4 -- 2 dealt with more efficiently, having regard to the complexity of the matter - no persuasive evidence that matter is complex - application in existing proceedings for the respondent to be represented by a lawyer refused LEGISLATION: Anti-Discrimination Act 1991, ch 2 Industrial Relations Act 2016, s 302, s 304 and s 530 CASES: State of Queensland (Queensland Health) v Hume [2022] ICQ 1 Reasons for Decision [1] Ms Chandra Clements, from about August 2020, performed work for a company called Fusable Pty Ltd ('Fusable'). [2] On 17 April 2021, Ms Clements made a complaint to the Queensland Human Rights Commission ('the QHRC') against a number of persons including Fusable and Mr Darren Phillips. Ms Clements' complaint included that between July 2020 and 18 December 2020 she had been the subject of unlawful discrimination on the basis of her sex and family responsibilities and that she was the subject of unlawful requests for information. The QHRC accepted the complaint as against Fusable and Mr Phillips. Ms Clements asserts that Mr Phillips was the General Manager of Fusable during the period to which the complaint relates. [3] On 24 December 2021, the QHRC referred the complaint to this Commission. The QHRC characterised the complaint as being one of unlawful direct and indirect discrimination in the work area on the basis of Ms Clements' parental status and family responsibilities, and that unlawful requests for information had been made of her. [4] On 5 January 2022, Fusable was deregistered. Therefore, Mr Phillips is now the only respondent. [5] On 5 January 2022, Mr Phillips, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), made an application in existing proceedings for leave to be granted to him to be represented by a lawyer in the proceeding ('Mr Phillips' application'). [6] The basis of Mr Phillips' application is that the Commission should give leave for him 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. The particulars of that contention, taken from an -- 2 of 4 -- 3 affidavit of the solicitor, who Mr Phillips wants as his representative, that was filed with his application ('the supporting affidavit'), are: • there are complexities regarding questions of fact in that there are several facts in dispute stated in the complaint and that legal representation would enable the proceedings to be dealt with more efficiently; • questions of law are likely to arise with the greatest issue in contention being '… Ms. Clements' professional position within the workplace' in that it is contended that Ms Clements was an independent contractor to Fusable, now deregistered, and that therefore '… their relationship raises questions of law under ss 302 and 304 of the' IR Act; • additionally, there are '… doubts as to whether the complaint made against the applicant can constitute a breach of Chapter 2' of the Anti-Discrimination Act 1991 ('the ADA'); and • the nature of the evidence is telephonic conversations, electronic messages and emails that would likely require cross-examination, thus legal representation will enable the proceedings to be dealt with more efficiently. [7] Ms Clements objects to Mr Phillips' application because, amongst other contentions: • the only complexity is whether or not she has been subjected to breaches of the ADA; • sections 302 and 304 of the IR Act have no application to her complaint; • even if she is an independent contractor, that is irrelevant to her complaint because the ADA applies to her in so far as she was engaged in work within the meaning of the ADA; and • she has been diagnosed as suffering from post-traumatic stress disorder and Mr Phillips, being represented by a lawyer, would impose a significant power imbalance which she could not overcome considering her injuries. [8] Recently in State of Queensland (Queensland Health) v Hume,1 I set out how, in my opinion, s 530(4)(a) of the IR Act is to be construed. I will not repeat here what I said in that case. [9] I am not persuaded, by the contentions contained in the supporting affidavit filed with Mr Phillips' application, that the matters or controversies in the proceeding are complex. There are four reasons for this. [10] First, the deponent of the supporting affidavit does not particularise the alleged complex questions of fact. 1 [2022] ICQ 1. -- 3 of 4 -- 4 [11] Secondly, it is not immediately apparent to me how the issue of whether Ms Clements was an independent contractor to Fusable or was an employee of Fusable is material to the question of whether she was the subject of unlawful direct or indirect discrimination on the basis of her parental status or family responsibilities, or how that issue is relevant to the question of whether she was the subject of unlawful requests for information. Connected to this is the fact that s 302 and s 304 of the IR Act have no relevance to her complaint.2 [12] Thirdly, there is no explanation of the 'doubts', expressed by the deponent of the supporting affidavit, that Ms Clements' complaint made against Mr Phillips could constitute a breach of ch 2 of the ADA. [13] Fourthly, the proceeding, being the referral of Ms Clements' complaint by the QHRC to this Commission, has been allocated to me for conciliation. The fact that there is a likely requirement for cross-examination (should the matter proceed to a final hearing) does not, on its own, give rise to a conclusion that legal representation would enable the proceeding to be dealt with more efficiently at the present time. [14] Having regard to the contentions referred to in the supporting affidavit, my view is that the matters or controversies the subject of the proceeding are not complex. For that reason, I am not persuaded that giving leave to Mr Phillips to be represented by a lawyer would enable the proceedings to be dealt with more efficiently having regard to the complexity of the matter. [15] If the proceeding is not resolved in conciliation, and there is a final hearing, that will be before another Member of the Commission. In my opinion, there is nothing that prevents Mr Phillips, if he chooses, from making a further application for leave to be represented by a lawyer if that stage is reached. Conclusion [16] For the reasons I have given, I refuse to give leave to Mr Phillips to be represented by a lawyer. Order [17] I make the following order: The Respondent's application in existing proceedings to be represented by a lawyer is dismissed. 2 Section 302 of the Industrial Relations Act 2016 ('the IR Act') provides that an employer, to whom the IR Act applies, must not misrepresent employment as an independent contacting arrangement. Section 304 of the IR Act provides that an employer, to whom the IR Act applies, must not make a misrepresentation to engage an employee as an independent contractor. The independent contractor agreement exhibited to the supporting affidavit clearly suggests Fusable was a trading corporation, such that the IR Act would not apply in any event. -- 4 of 4 --