Dalglish v MDRN Pty Ltd - [2014] FCCA 1138

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALGLISH v MDRN PTY LTD

[2014] FCCA 1138

Catchwords:
INDUSTRIAL LAW – Contract of employment – express or implied terms whether the right to make a complaint under anti-discrimination legislation is a “workplace right” under the Fair Work Act 2009 – whether the respondent was engaging in adverse action under the Fair Work Act 2009 – whether the respondent harassed or sexually harassed the applicant – the quality of the respondent’s investigation into the allegations – whether the applicant resigned by email communication.

Legislation:

Anti-Discrimination Act 1991 (Qld), s.119.
Evidence Act 1995 (Cth), s.131.
Fair Work Act 2009 (Cth), ss.12, 90, 340, 341, 351.

Australian Film Commission v Mabey (1985) 59 ALR 25
Commonwealth Bank of Australia v Barker (2013) 214 FCR 450
Field v Commissioner for Railways (NSW) (1957) 99 CLR 285
Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120
Regional Express Holdings Limited v McDonald [2013] FCCA 1049

Applicant:

SIMIENNA ESTHER DALGLISH

Respondent:

MDRN PTY LTD TRADING AS MCCARTHY DURIE LAWYERS

File Number:

BRG 264 of 2012

Judgment of:

Judge Cassidy

Hearing dates:

16 & 17 October 2013 and 30 January 2014

Date of Last Submission:

30 April 2014

Delivered at:

Brisbane

Delivered on:

10 June 2014

REPRESENTATION

Solicitors for the Applicant:

Milner Lawyers

Counsel for the Respondent:

Mr Merrell

Solicitors for the Respondent:

McCarthy Durie Lawyers

ORDERS

That the applicant’s application filed 21 March 2012 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 264 of 2012

SIMIENNA ESTHER DALGLISH

Applicant

And

MDRN PTY LTD TRADING AS MCCARTHY DURIE LAWYERS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by Ms Simienna Esther Dalglish for compensation. She is seeking compensation in the sum of $57,786.05, being loss of income, reinstatement of annual leave, general compensation, pay in lieu of notice and medical expenses. This is the sum set out in her claim. The respondent is seeking that her application be dismissed. The applicant was an employed solicitor, employed with the company MDRN Pty Ltd trading as McCarthy Durie Lawyers.
The applicant alleges she was harassed both sexually and otherwise in the workplace while employed by the respondent. She also argues the process of the respondent’s investigation into the allegations was flawed. The respondent’s case is that the applicant resigned on 13 December 2011. The applicant disputes this.
It is a credit to the parties that they have been able to agree to the matters that are in dispute and they are set out at paragraph 2 of the written submissions provided by the respondent:
“[2] The agreed matters in dispute are:
(a) whether the contract of employment between the Applicant and the Respondent contained the following implied terms:
(i) that the Respondent in its dealings with the Applicant as its employee would deal with the Applicant in good faith;
(ii) that the Respondent would not conduct itself in a way which is likely to destroy or seriously damage the relationship of trust and confidence between the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 1138
Decision Date: 10 June 2014

CaseChat Overview and Summary

In this matter before Judge Cassidy, the applicant sought to argue that an email dated 13 December 2011 was privileged and therefore inadmissible as evidence. The respondent, MDRN Pty Ltd, had attached this email to an affidavit, and it had been admitted into evidence without objection during the proceedings. The applicant's argument was that the email constituted a communication made in connection with an attempt to negotiate a settlement of a dispute, and thus was excluded by section 131(1)(b) of the Evidence Act 1995 (Cth).

The primary legal issue before the court was whether the email of 13 December 2011 was properly excluded from evidence on the grounds of privilege under section 131(1)(b) of the Evidence Act 1995 (Cth). The court was also required to consider the relevance of the case of *Field v Commissioner for Railways (NSW)* and the definition of sexual harassment under section 119 of the Anti-Discrimination Act 1991 (Qld) in the context of the admitted evidence.

Judge Cassidy determined that the applicant's argument regarding the privilege of the email was not available as a matter of law. The court reasoned that the email had been admitted into evidence without objection, and that any privilege had been waived by the consent of the person in dispute to its adduction. The court noted that the applicant had raised other objections to evidence prior to the trial dates, but had not raised this specific objection concerning the email. Consequently, the court found that it was not open to the applicant to argue for its exclusion at this stage. The court also clarified that *Field v Commissioner for Railways (NSW)* was not relevant as it concerned the exclusion of evidence from settlement negotiations, whereas in this case, no such exclusion had occurred. The court accepted that an earlier email from Mr Shane McCarthy on 12 December 2011 indicated an intention to investigate complaints rather than dismiss the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The argument raised by the applicant, that the email of 13 December 2011 at 6.19pm was privileged and therefore not able to be considered, is simply not available as a matter of law. That email was attached to Mr Shane McCarthy’s affidavit. As an evidential point, it was not objected to, it was admitted into evidence. I note that evidence is not to be adduced of a communication that is made between persons in a dispute, in connection with an attempt to negotiate a settlement of the dispute, as set out in s.131(1)(a) and (b) of the Evidence Act 1995 (Cth):“131 Exclusion of evidence of settlement negotiations(1) Evidence is not to be adduced of:(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.” In the present case, the relevant section is s.131(1)(b) of the Evidence Act 1995 (Cth). The document was in evidence. If it is alleged that it was prepared in connection with an attempt to negotiate a settlement, I am satisfied that the privilege has been waived because the person in the dispute consented to the evidence being adduced in the proceedings. In the present case there were a number of objections to evidence dealt with in this matter prior to the trial dates. The email in question was not raised and it has been in evidence throughout the trial. It is not available now to argue that it should be excluded. I accept that the email of 12 December 2011, sent by Mr Shane McCarthy at 2.44pm, was to inform the applicant that Ms Harrison had been engaged to investigate the complaints. From that perspective, the respondent was not seeking to dismiss the applicant, but rather wanted to deal with and investigate her complaints. Field v Commissioner for Railways (NSW) (1957) 99 CLR 285 has no relevance in this matter because it relates to exclusion from evidence of words exchanged by parties in the course of negotiations to settle litigation. There was no exclusion of the evidence in the present case and there was no attempt to exclude the evidence at the appropriate time, which would have been when the other objections were taken by the applicant to the respondent’s evidence. The relevant law in relation to sexual harassment is as set out in s.119 of the Anti-Discrimination Act 1991 (Qld):“119 Meaning of sexual harassment Sexual harassment happens if a person— (a) subjects another person to an unsolicited act of physical intimacy; or (b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or (c) makes a remark with sexual connotations relating to the other person; or (d) engages in any other unwelcome conduct of a sexual nature in relation to the other person; and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so— (e) with the intention of offending, humiliating or intimidating the other person; or (f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. Examples of subsection (1)(a)— physical contact such as patting, pinching or touching in a sexual way unnecessary familiarity such as deliberately brushing against a person Example of subsection (1)(b)— sexual propositions Examples of subsection (1)(c)— unwelcome and uncalled for remarks or insinuations about a person's sex or private life suggestive comments about a person's appearance or body Examples of subsection (1)(d)— offensive telephone calls indecent exposure”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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