QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Rozendaal v State of Queensland (Queensland Corrective Services) [2024] QIRC 135

PARTIES:	
	Rozendaal, Arrin
(Applicant)

v

State of Queensland (Queensland Corrective Services)
(Respondent)

CASE NO:
	TD/2024/21
	
PROCEEDING:
	Application in existing proceedings

DELIVERED ON:
	29 May 2024	
MEMBER:

HEARD AT:	Caddie IC

On the papers

ORDER:
	The application made by the Respondent for leave to be represented by a lawyer pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld) is dismissed.
	
CATCHWORDS:	APPLICATION FOR REINSTATEMENT – APPLICATION FOR LEGAL REPRESENTATION – 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 - leave not granted for legal representation in conciliation.
	
LEGISLATION:

CASES:	Industrial Relations Act 2016 (Qld) ss 320(2), 530.

Sillay v State of Queensland (Queensland Corrective Services) [2024] QIRC 82.

State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118.

State of Queensland (Queensland Health) v Hume [2022] ICQ 001.

Warrell v Walton [2013] FCA 291; [2013] 233 IR 335.

Reasons for Decision

[1]	The Applicant, Mr Arrin Rozendaal, filed an application on 18 March 2024 for reinstatement, seeking reinstatement to his former position; or reemployment in another available and suitable position; or if reinstatement or reemployment is impracticable, appropriate compensation ('the proceeding').

[2]	Mr Rozendaal commenced employment as a Custodial Correctional Officer with Queensland Corrective Services ('QCS') on 7 September 2015. His employment was terminated on 26 February 2024, with immediate effect, following a disciplinary process regarding two allegations of inappropriate workplace conduct towards a female colleague during 2020 and 2021. 

[3]	Attached to its response, filed 4 April 2024, the Respondent, the State of Queensland QCS applied for orders that it be granted leave to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act').

[4]	On 15 April 2024, the matter was allocated to me for conciliation, and a conference was listed for 29 April 2024 to attempt to settle the application in accordance with s 318 of the IR Act. 

[5]	On 23 April 2024 Mr Rozendaal objected to leave being granted for QCS to be legally represented. Mr Rozendaal is represented in the proceedings by a registered employee organisation, Together Queensland, Industrial Union of Employees ('Together').

[6]	The conciliation conference was cancelled, and I issued directions to hear the parties in relation to QCS' application. QCS filed written submissions on 30 April 2024. Mr Rozendaal through Together filed submissions in reply on 3 May 2024. QCS sought and received leave to file submissions in reply, which were subsequently filed on 10 May 2024.

[7]	While the parties have made their submissions in relation to the whole proceeding, the matter is allocated to me for the purpose of conciliation only. It is generally the case that where a member of the Commission has conducted conciliation and the matter, having not settled, is referred for arbitration, a different member of the Commission will conduct the hearing. 

[8]	The question for my determination is whether, in the present circumstances, leave should be granted for QCS to be legally represented in any s 318 conciliation conferences held before the Commission. 

Relevant Legislation

[9]	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 -
(e)	 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
…
(7)	In this section– 
…
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. 

[10]	I am satisfied that these proceedings fall within the definition of 'relevant provision' and that I am within jurisdiction to determine whether I exercise discretion to grant leave for legal representation.

[11]	Merrell DP considered the construction of ss 530(1) and 530(4) of the IR Act in State of Queensland v Hume. His Honour said:

		[34]	First, the purpose of the combined effect of s 530(1)(a)(ii) and s 530(4) of the IR Act is to confer on the Court discretion to give leave, for a party or person ordered or permitted to appear or to be represented in proceedings before it, to be represented by a lawyer if the Court forms one of the value judgments in s 530(4)(a) to (c).

		[35]	Secondly, it is clear that the power conferred on the Court is discretionary and not obligatory. The use of the verb 'may' in s 530(4) of the IR Act logically imports an element of discretion on the part of the Court. The discretionary character is not displaced by the mandatory requirement that the Court must form a value judgment about whether, relevantly to the present case, the giving of the leave sought would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. That is to say, if the Court forms that value judgment, then there is still a discretion to be exercised. The formation of one of the value judgments in s 530(4)(a) to (c) does not dictate that the discretion is automatically exercised in favour of an applicant seeking leave to be represented by a lawyer.

		[36]	Thirdly, s 530(4)(a) of the IR Act refers to the question of whether leave would enable '… the proceedings' to be dealt with more efficiently, having regard to the complexity of '… the matter.'

		[37]	Chapter 11, pt 5, div 3 of the IR Act is headed 'Conduct of proceedings.' Division 3 contains s 529 and s 530 of the IR Act. Section 529(1) of the IR Act provides that a person or party may be represented in the proceedings by an agent appointed in writing or, if the party or person is an organisation, an officer or member of that organisation. In s 529(2)(a) of the IR Act, the noun 'proceedings' is relevantly defined to mean proceedings under the IR Act or another Act being conducted by the Court, the Commission, an Industrial Magistrates Court or the Registrar. The noun 'proceedings' is relevantly defined in the same way in s 530(7) of the IR Act.

		[38]	Having regard to that context, when s 530(4)(a) of the IR Act refers to '… the proceedings', my opinion is that phrase, relevantly to matters such as the present, refers to an application for relief made by a person which an industrial tribunal has jurisdiction to grant.

		[39]	By contrast, s 530(4)(a) of the IR Act then refers to the complexity of '… the matter.' Because of the different phrase used, my opinion is that '… the matter' is a reference to the particular controversy or controversies requiring determination by the industrial tribunal so as to make a decision about the application for relief or, put another way, to determine the proceedings.

		[40]	Fourthly, s 530(4)(a) of the IR Act is otherwise to be construed according to the ordinary meaning of the words used in that provision. A value judgment has to be formed as to whether or not the giving of leave to a party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The matter does not have to be complex, or compared to other matters that have or may become before the Court, be more complex; but regard must be had to the complexity of the matter.

		[41]	Further, in having regard to that complexity, a judgment has to be formed as to whether allowing the party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently. Section 530(4) of the IR Act is relevantly concerned with whether or not discretion should be exercised in favour of a party seeking leave to be represented by a lawyer in proceedings before the Court. As a consequence, my opinion is that the adverb 'efficiently', in the context that it is used in s 530(4)(a) of the IR Act, is concerned with, at least, timeliness.

		[42]	Fifthly, if the Court forms one of the value judgments in s 530(4)(a) to (c) of the IR Act, s 530 is otherwise silent as to the factors the Court must consider in terms of exercising the discretion. In such a case, the relevant considerations must be determined from the scope and object of the provision conferring the discretion.

		[43]	The object of s 530 of the IR Act is to set out the circumstances by which a party or person may be represented in the proceedings by a lawyer. The circumstances described in s 530(4), which enliven the discretion of the Court to give leave, concern efficiency in the conduct of the proceedings. The circumstances also concern fairness, having regard to the particular circumstances of the person or party seeking leave to be represented by a lawyer, and also fairness having regard to the other parties or persons in the proceedings.

		[44]	As a consequence, depending on the circumstances of a particular case, matters such as efficiency and, or in the alternative, fairness, may be relevant considerations as to whether or not the discretion, once enlivened, should be exercised.

The Respondent's Application for Leave 

[12]	QCS contends that leave should be granted to support efficiency of conduct and fairness between the parties. 

[13]	Citing O'Connor VP in State of Queensland v Dawson, QCS contends that efficiency in general is "more likely where competent legal representation is involved." This arises from legal expertise assisting the Commission to, in summary:
	
•	Determine the proceedings due a lawyer's paramount duty to the court and administration of justice;
	
•	Ensure adherence to process and procedure, facilitating the just and efficient resolution of the dispute; and

•	Ensure respondent submissions are focussed on relevant issues of fact and law to be decided.

[14]	Having regard to the complexity of the matter, QCS submits the Commission will need to consider issues with legal and factual complexity, better presented by legal representation. Those complexities may include:

	(a)		whether the allegations against the Applicant are capable of being substantiated on the evidence available;
	(b)	whether appropriate weight has been afforded to the evidence in forming the conclusion that the allegations against the Applicant are capable of being substantiated;
(c)	whether the disciplinary action of termination of the Applicant's employment was appropriate in view of the substantiated allegations and the degree of seriousness;
(d)	whether the dismissal was harsh;
(e)	the application of the new provision in s 320(2) of the IR Act in deciding whether the dismissal was harsh, unjust or unreasonable concerning conduct that was wholly or partly sexual harassment. While the allegations were not framed such that the Applicant engaged in sexual harassment, the conduct was nevertheless of a sexual nature; and
(f)	the availability and/or appropriateness of reinstatement or re-employment of the Applicant in circumstances where the Respondent has lost trust and confidence in the Applicant and is bound by work health and safety obligations.

[15]	QCS also submits that the full scope of the matter is not clear, including whether cross-examination of witnesses is required. They add that having legal representation involved may assist the Commission to narrow the issues in dispute, increasing efficiency. QCS acknowledges they have access to in-house resources, but submits this is not central to the question of whether leave should be granted.

[16]	Turning to the question of fairness between the parties, the Respondent submits legal representation will promote, in summary:

•	Proper case and courtroom management, and facilitate fairness;

•	Balance against the significant experience of Together in industrial matters and unfair dismissal matters in the Commission; and

	•	The Respondent's capacity to put forward its strongest case.

	Applicant's Response

[17]	Together in Mr Rozendaal's Form 102 Response objects to the granting of leave for the following summarised reasons:

	•	The application for reinstatement is not legally complex and will likely not involve the extensive cross examination of witnesses;

	•	The Respondent has significant resources including internal legal expertise and the internal person assigned is likely to be legally experienced and familiar with commission proceedings;

	•	Allowing private lawyers in conciliation conferences has the potential for discussions to devolve into highly technical legal arguments as opposed to genuine discussions about how to settle the application at hand;

	•	The Commission has the capability and power to ensure practice and procedure are adhered to;

	•	Legal representation in the Commission should be the exception rather than the rule;

	•	The facts of the matter are a fairly standard disciplinary process resulting in termination of employment, without novel or complex legal arguments;

	•	Private lawyers do not have decision making authority leading to time delays and inefficiency;

	•	The involvement of private solicitors in Commission matters provides the temptation for the State of Queensland to pursue costs against the Applicant;

	•	Together Queensland has comparatively fewer resources than the Respondent both in terms of financial resources and Human Resources/Legal staff; and

	•	The Applicant has been financially impacted by the termination and is not able to hire private lawyers to match QCS.

Respondent Submissions

[18]	On reviewing the Application and Response, I noted similarities between the parties, the contentions made and the factors involved, and Sillay v State of Queensland. In my directions for submissions, I requested that the parties address that decision.

[19]	The Respondent submits that the Applicant's objections in its response appear largely the same as those made by Together in Sillay, in which Hartigan DP granted leave for external legal counsel to represent QCS in that proceeding. 

[20]	The Respondent rejects the Applicant's Response submissions, relying heavily on her Honour's reasoning in Sillay, outlined below:

[14]	The statement of Mr Sillay that legal representation should be "the exception rather than the rule" appears to have been made with little regard to s 530 of the IR Act and the matters the Commission must have regard to when considering if leave should be granted for a litigant to be legally represented.	
[15]	Relevantly, I do not accept the broad submission that the involvement of legal practitioners would add to the inefficiency and complexity of the proceedings.
[16]	Legal representatives are bound by their respective professional duties to the court and their clients. These duties, together with the supervision of the Commission, should ensure that each party and their respective representatives act in good faith and in a manner which will ensure the proceedings, including any conciliation conference, proceeds efficiently.
	…
[20]	Mr Sillay further contends that the involvement of legal representation provides temptation for the State of Queensland to pursue costs against an applicant in the Commission which increases the perception of an adversarial process. Mr Sillaynotes that he would be more amenable to consenting to the involvement of legal representation if QCS were to provide an undertaking that they would refrain from pursuing costs in the matter.
[21]	This submission has the appearance, at least, of being scandalous. There is no factual basis to assert that by granting leave for the State to be legally represented that it will seek to pursue costs against Mr Sillay. Such a submission has no regard to the following:
	(a)	that the cost provisions in s 545 of the IR Act provide, inter alia, that the default position is that each party bears its own costs;
	(b)	that the Commission may only award costs in limited circumstances, including where the party has made the application or responded to the application vexatiously or without reasonable cause, or it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success;
		(c)	the fact that the State is bound by model litigant principles; and
		(d)	the matters that must be considered pursuant to s 530 of the IR Act.
		…
[25]	Finally, Together Queensland is an employee organisation that appears regularly before this Commission in a variety of industrial matters. For this reason, I do not accept that Mr Sillay would be disadvantaged if leave were granted in circumstances where he has the benefit of being represented by Together Queensland.
[21]	The Respondent submitted that the factual circumstances of the present matter fall within the comments made by Hartigan DP in Sillay in that:
		
		(a)	The allegations at hand are serious;

		(b)	A lengthy investigation process, followed by a show cause process, was embarked upon by the Respondent prior to the decision maker determining to terminate the Applicant's employment;

		(c)	The Commission will be required to consider the allegations and the process adopted by the Respondent; and

		(d)	The Application for Reinstatement and the Employer's response in the Proceedings are lengthy, and the Commission will be assisted by the expertise and skill of experienced legal representatives who regularly appear in the jurisdiction and are familiar with Commission procedures and processes.

[22]	The Respondent notes the Applicant suggests that if leave is granted, it should be after the conciliation conference. The Respondent submits that external lawyers bring objectivity to the process, and that it would be more efficient to have them involved as early in the proceedings as possible to assist in exploring all possible options for resolution.

Applicant's Submissions

[23]	To the extent that Together's submissions relate to the jurisdictional preconditions at hand as applied to this case, they make the following submissions:

	Efficiency having regard to complexity

[24]	The Applicant submits:

	•	The allegations are not contested and the Applicant accepts that they have been substantiated. There is therefore no issue in relation to the evidence relied upon or the process.

	•	Whether the dismissal was appropriate or harsh considering the substantiated conduct does not involve complex legal questions or require forensic cross-examination. They contend this is also true in relation to the appropriateness of reinstatement or reemployment. 

	•	Regarding application of the new section 320(2) of the IR Act, Together reiterates that the allegations are accepted. No cross-examination of witnesses is required and the sexual nature of the allegations does not give rise to complex legal issues.

[25]	In summary, the Applicant submits:

There is no evidence that there will be complex legal matters, nor is there likely to be a need for forensic examination of witnesses. Indeed, there will be no examination of witnesses in the conciliation conference where the respondent seeks representation. In the absence of a positive finding on complexity, reliance on efficiency alone to grant representation would be misplaced.

	Fairness

[26]	The Applicant broadly submits there can be no real suggestion that QCS would not be able to effectively represent themselves in the proceeding, including their capacity to seek representation from Crown Law without requiring leave of the Commission. The Applicant submits QCS's desire to put forward their best case via legal representation misunderstands the test. 

[27]	In relation to fairness between the parties, the Applicant submits that the Respondent improperly conflates Together's expertise with that of the official with carriage of the matter. The Applicant notes Ms Petering is not a lawyer, and she is not highly experienced in relation to unfair dismissal matters. 

	Respondent's Submissions in Reply

[28]	The Respondent acknowledges that the matter may be confined to the issues of harshness, but that this cannot be known until the Applicant's contentions are formalised. The issues in dispute therefore remain unclear and not well defined. The Respondent argues further that even if the matter is confined, the Commission will still be required to determine if the conduct was sufficient to warrant dismissal. The Commission will be assisted by legal representation, including at the conciliation conference, to narrow the issues in dispute, which will ensure efficiency.

[29]	The Respondent explains in these submissions and via an affidavit of Ms Jackie Hamilton of Holding Redlich that Holding Redlich's capacity to appear in lieu of Crown Law is made pursuant to Cabinet approved principles that define categories of legal work tied to Crown Law. This matter falls within the litigation category. Work may be referred to a legal service provider other than Crown Law, and Holding Redlich is a firm that forms part of the Whole-of Government Legal Services Panel. Holding Redlich are as a consequence bound by the Model Litigant Principles.

[30]	QCS further notes that while it is acknowledged that Ms Petering of Together may not be a lawyer, she still has access to all of the expertise and resources of Together. The Respondent submits it therefore would not be unfair to allow QCS to be represented. 

[31]	The Respondent submits the decision of Hartigan DP in Sillay is highly persuasive in assisting the Commission in determining whether leave should be granted for the Respondent to be legally represented. The Applicant has made no submissions as to why this decision should not be applied.

	Consideration

[32]	I am required to consider in the first instance whether any of the preconditions to the granting of leave for legal representation have been made out. While decisions by members of the Commission or Court are instructive, they do not relieve me of the requirement to consider the factors as applied to this case.  

[33]	I am not persuaded by the Respondent's submissions that the decision of Hartigan DP in Sillay should simply be applied in the current matter due to many of the general objections from the Applicant in this matter being the same. While this may seem logical given it is the same matter type with the same respondent, the same private law firm and same union, the statutory preconditions and the subsequent exercise of my discretion must be applied in view of the facts of this particular matter and this particular Applicant.

[34]	I agree there are a number of general assertions made by the Applicant in Sillay, repeated in the current matter, which were thoroughly dispatched by her Honour Hartigan DP, including the issue of costs. To the extent that any of those broad or general assertions are relevant to my consideration of the present circumstances I will make that clear.

[35]	I do not agree with the Respondent that the factual circumstances of this case fall within the comments made by Hartigan DP in Sillay for the following reasons.

[36]	The scope of this matter is limited to determining whether or not the dismissal was harsh. The underlying substantiated allegations leading to the termination are not disputed. The application filed, the employer's response, and submissions exchanged in relation to legal representation all confirm that this is the case. While the Respondent continues to assert that until the formalised contentions are filed it cannot be known conclusively, this is not persuasive particularly when considering what, if any, difference that could make to the efficient conduct of conciliation. 

[37]	This narrow scope addresses a number of the complexity issues identified by the respondent in their application and submissions. As the Respondent submits:

Whilst an application for reinstatement may not be legally complex and the principles applied in reinstatement application decisions are, with the exception of s 320(2) of the IR Act, well settled, the Commission must apply these principles in view of the individual facts of each matter.   

[38]	The Respondent does identify that consideration of s 320(2) will be novel, and while that is likely to still be true if this matter proceeds to hearing, it does not automatically follow that it will be complex. This is particularly so where the Applicant has confirmed they do not contest that the conduct occurred, or that it was wholly or in part sexual in nature. 

[39]	I accept that should the matter proceed to a final hearing this may present a novel, if not complex, issue of law. This matter does not on its own lead to a conclusion that legal representation would enable the proceedings to be dealt with more efficiently at the present time.

[40]	I do not accept the Applicant's general proposition that lawyers in conciliation have "the potential for discussions to devolve into highly technical arguments as opposed to genuine discussions about how to settle the application at hand." I also do not accept the Respondent's general proposition that the involvement of lawyers at the conciliation conference would assist the Commission and allow the parties to effectively conciliate the matter in circumstances where "all options to resolve the matter will be explored." Each case must be considered on its own facts.

[41]	It is the role of the Commission to assist the parties at conciliation to explore all options to settle the matter and ensure that there is genuine and practical discussion in order to be satisfied all reasonable attempts have been made as required by s 318 of the IR Act. I am confident that, at conciliation, QCS being represented by itself or Crown Law, and the Applicant being represented by Together, would not result in unfairness to any party. 

[42]	I note the submissions from the Respondent regarding the Government's arrangements in relation to outsourcing the work of Crown Law to a panel of private legal firms in certain circumstances. There is nothing in those arrangements that overrides the requirements of the Commission as set out in s 530 of the IR Act.

[43]	Referring back to the steps outlined by Merrell DP in Hume, at this stage in the proceedings I am not satisfied that leave for legal representation would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter, or enhance fairness between parties. My discretion to exercise leave is not enlivened.

[44]	The issues raised by the Respondent may well be persuasive in respect of legal representation at hearing, if Mr Rozendaal's application is not resolved in conciliation. The Respondent is not prevented from making a further application for leave to be represented by a lawyer at that stage, to be determined by the presiding member of the Commission.

Order
[45]	I make the following order:

1.	The application made by the Respondent for leave to be represented by a lawyer pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld) is dismissed.