Guide for unfair dismissal applications in the Queensland Industrial Relations Commission (QIRC)
The following information is intended to give some guidance about the procedural aspects of Commission hearings to parties who have either filed an application with the Commission or who are respondent to an application (the other party named in the application).
Parties to the Application
An application for reinstatement is made by an employee who believes that he or she has been unfairly dismissed. This person is called the APPLICANT. The former employer of the applicant is called the RESPONDENT. The applicant and the respondent are known as the PARTIES to the application. A SELF-REPRESENTED PARTY is one who is not represented by a specialist advocate such as a union official, industrial consultant or lawyer.
What is a Directions Hearing or Mention?
An application for reinstatement only proceeds to a directions hearing or mention if the parties have been unable to reach agreement at the conciliation conference and the applicant has requested a full hearing. The applicant must have made the written request to the Registrar within 6 months after the conciliation conference.
The directions hearing or mention is held to set a timetable for actions that must be taken by the parties before the full hearing of the reinstatement application. After the directions hearing or mention, the Member issues a FURTHER DIRECTIONS ORDER which contains the instructions for the actions which must be taken by both the applicant and the respondent.
These instructions are all aimed at making the parties exchange documents which are relevant to the case. The reason behind this is the important legal principle that justice is not achieved if there is "trial by ambush". Each case should be decided on the merits. Neither party should be surprised by the other party's evidence on the day of the trial. This ensures that the system is fair to all and prevents delays caused by one party having to ask for the hearing to be adjourned to gather further evidence to respond to something new. Civil proceedings in the District and Supreme Courts are conducted on this basis.
The Further Directions Order
The further directions order issued at the directions hearing or mention contains a number of instructions to both the applicant (the dismissed employee) and the respondent (the former employer):
the applicant and the respondent may be ordered to provide each other with a list of documents by a specified time;
each party may be ordered to provide copies of documents on the list if the other party requests it;
each party may be ordered to provide the other party with statements of evidence from any witnesses they intend to call;
the order may state that a party would have to get the permission of the Commissioner hearing the case to lead evidence not mentioned in the witness statements or to lead evidence from witnesses other than those whose statements were provided.
The List of Documents and Discovery
Each party lists all documents that are relevant to a matter in issue between the parties where the party has the document in their possession or under their control. A DOCUMENT is not just a paper document, but includes audio tapes, computer and electronic records and videos.
A document is RELEVANT if it relates to an issue which is in dispute between the parties and which has the potential to advance one party's case or damage the other party's case. What was said by the applicant and by the respondent at the conciliation conference may give some indication of what issues are disputed.
For example, the employee might say she was dismissed because she was pregnant but the employer says it was because of her poor work performance. The issue in dispute is the reason for the dismissal. If the applicant has kept a copy of any maternity leave application she would list that. The respondent employer would have to list any employee records that indicate that the employee was counselled about work performance.
Another example would be where the employer says the employee was a short term casual but the applicant says he was a long-term casual who worked a regular roster. The issue in dispute is whether the unfair dismissal provisions in the Industrial Relations Act apply to the applicant. If the applicant kept his pay slips he would list them and the respondent employer would list staff rosters and time and wages records.
IN THEIR POSSESSION refers to ownership of the document. A document a party possesses is one they own. UNDER THE CONTROL OF THE PERSON includes documents the party has the power or authority to retrieve. Thus relevant documents held at the office of a party's accountant or solicitor, or relevant documents held by the head office of the respondent employer would have to be listed.
The order for each party to exchange lists of relevant documents is part of the process called DISCOVERY. Once the list is provided to the other party, the other party can request copies of any document on the list. This part of the process is called INSPECTION. A copy of the document MUST be provided unless the party who listed it claims that it is subject to PRIVILEGE.
One kind of privilege that might be claimed is the privilege against self-incrimination. A person is not obliged to answer a question or produce a document that has the tendency to expose that person to a criminal conviction or civil penalty. Another kind of privilege that might be claimed is client legal privilege. A document does not have to be produced if the dominant purpose for which it was brought into existence was the obtaining or giving of confidential legal advice.
In the hearing, both parties can call witnesses to give evidence about the applicant¿s employment and the circumstances of the dismissal. The applicant can give evidence, that is, the applicant can be a witness for him or her self. Often this is the only way the applicant can put forward his or her story.
The applicant can also call other witnesses whose evidence supports the applicant's versions of events. Similarly the respondent employer can call witnesses such as the applicant's former supervisor or manager. Witnesses are used to give evidence about the issues in dispute between the parties.
The Further Directions Order issued at the directions hearing or mention may instruct each party to provide the other party with STATEMENT(S) OF EVIDENCE or WITNESS STATEMENTS. These are statements from each intended witness which provide the name, address and occupation of the witness and a summary of the key points of the evidence the witness will give at the hearing.
The time limits in the Further Direction Order must be complied with. They are to ensure that the matter is ready for hearing by the dates set for hearing. Under Rule 45 (3) of the Industrial Relations (Tribunals) Rules 2011, if a party fails to comply with the directions order, the Commission may dismiss the application or make other orders that may not be in the best interests of the defaulting party.