An employer's right to be heard – Is the door ajar?

In Brisbane City Council v Gillow [2015] QIRC 124, the Industrial Relations Commission (IRC), in a decision that was upheld by the Industrial Court¹, held it did not have the power to give an employer leave to appear in an appeal to the IRC by a worker pursuant to s549 of the Workers’ Compensation and Rehabilitation Act 2003.

For employers, the decision has serious ramifications, particularly where its legal and/or financial rights may be affected by an appeal. Based on Gillow, the employer must, essentially, rely on the Workers’ Compensation Regulator (Regulator) to, in effect, “stand in its shoes” and defend any appeal that a worker may bring. However, the Regulator often has different interests to that of the employer, and hence may not act as the employer would.

However, what if the worker’s allegations in his/her appeal relate to the conduct of the employer and are of such a serious nature they might give rise to possible criminal implications. Can an employer be heard in those circumstances? That was one of the issues President Martin was asked to rule on in McEnearney v Simon Blackwood (Workers’ Compensation Regulator) [2019] ICQ 7 when it came before him on appeal from the IRC.

The worker, Ms McEnearney, asserted that she sustained a psychological injury due to “particular conduct” by the managing director of her employer. According to the worker in her evidence-in-chief before the IRC, that conduct included allegations of fraud, misleading and deceptive conduct and insider trading. Relevantly, the worker had filed an appeal in the IRC against the Regulator’s decision to reject her application for compensation such that, in accordance with the decision in Gillow, the employer was unable to appear in the appeal. However, as a result of the worker’s evidence-in-chief, the IRC allowed the managing director leave to intervene (indeed, the IRC so ordered after the commencement of the hearing).

The IRC ultimately dismissed the worker’s appeal and confirmed the Regulator’s decision to reject her application for compensation. The worker filed an appeal to the Industrial Court on numerous grounds. One such ground was that, relying on Gillow, the IRC erred in allowing the managing director leave to intervene in her appeal.

In ruling on that particular ground of appeal, President Martin distinguished his earlier decision in Gillow because the employer was not seeking leave to appear. Rather, the managing director was given leave to intervene “given the extremely serious nature of the allegations made against him“, which the IRC had power to do pursuant to s274 of the Industrial Relations Act 1999 (now s451 of the Industrial Relations Act 2016).

At paragraph 12, President Martin said:

…The nature of the allegations she made against [the managing director] was so serious and was so unlikely to be within the detailed knowledge of the respondent [the Regulator] that this was a case where the power under s 274 could be exercised. The power is one which should be exercised cautiously and rarely. It will not often occur that the circumstances will be as extreme as they were in this case.

What does all that mean for employers?

Relying on Gillow, an employer has no standing to apply for leave to be heard in a worker’s appeal. However, this decision has left the door slightly ajar. It will not be every case, but should the allegations “be as extreme as they were in this case“, say allegations of bullying and harassment of a sexual nature, sexual misconduct and/or criminal activity, as was the case here, an employer or, more likely, the person(s) against whom the allegations have been made, may be granted leave to intervene.

For an employer, that can only be a benefit.

No matter how limited the right to intervene is (in this case, the leave was limited to matters concerning the managing director’s alleged illegal conduct), an employer, perhaps via its managing director (as was the case here) may now, once again, get a say in the defence of an appeal and not have to rely entirely on the Regulator to defend an appeal that will affect its legal and/or financial rights.

This article was written by Tony Scott, Partner, Graeme Traves, Partner and Kyle Norton, Special Counsel.

¹Brisbane City Council v Gillow & Simon Blackwood (Workers’ Compensation Regulator) [2016] ICQ 007