Gilroy v Burgess - [2019] QIRC 185

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Gilroy v Burgess [2019] QIRC 185
PARTIES:	Sherie Gilroy (Complainant) v Trent Burgess (Respondent)
CASE NO:	AD/2018/76
PROCEEDING:	Complaint
DELIVERED ON:	4 December 2019
HEARING DATE:	25 November 2019
MEMBER: HEARD AT:	Merrell DP Brisbane
ORDER:	The objection to the unsigned affidavit of Nicholas Holmes filed on 15 July 2019 is dismissed
CATCHWORDS:	ANTI-DISCRIMINATION – objection to admission of whole of affidavit into evidence on ground of irrelevance and on grounds the affidavit contains material that is scandalous and oppressive – objection dismissed
LEGISLATION: CASES:	Anti-Discrimination Act 1991 (Qld), s 119 and s 208 Industrial Relations (Tribunals) Rules 2011 (Qld), r 52 Sex Discrimination Act 1984 (Cth), s 28A Deanne Maree King v Workers' Compensation Regulator [2019] QIRC 13 Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 Horman v Distribution Group Ltd [2001] FMCA 52 Smith v Hehir and Financial Advisors Australia Pty Ltd [2001] QADT 11 Whittle & Hughes v Paulette & Specific Pools [1994] QADT 5

APPEARANCES:

Mr M. Rawlings instructed by Caxton Legal Centre for the Complainant

Mr P. Travers instructed by McMillan Criminal Law for the Respondent

Reasons for Decision

Introduction

Between September 2016 and June 2017, Ms Sherie Gilroy worked as a cleaner on the rail corridor duplication project between Coomera and Helensvale ('the Project'). During that time, Ms Gilroy was employed by Golding Contractors Pty Ltd. Between 14 June 2017 and 30 June 2017, Ms Gilroy worked on the Project as a Protection Officer and was employed by Swetha International Pty Ltd.
Workpac Pty Ltd provided labour hire services for the Project over the same periods of time Ms Gilroy worked on the Project. In doing so, it employed Mr Trent Burgess.
On 1 May 2018, Ms Gilroy made a complaint to the Anti-Discrimination Commission Queensland that she had been sexually harassed by Mr Burgess in contravention of the Anti-Discrimination Act 1991 ('the Act'). Ms Gilroy's complaint was made against Mr Burgess and Workpac.
On 3 September 2018, Ms Gilroy's complaint against Mr Burgess and Workpac was referred to this Commission. In January 2019, Ms Gilroy discontinued her complaint against Workpac.
Directions were made for the hearing and determination of Ms Gilroy's complaint against Mr Burgess. Ms Gilroy's complaint against Mr Burgess will be heard for three days commencing on 11 December 2019. Statements of facts and contentions have been filed by the parties as have statements of evidence from witnesses the parties intend to call at the hearing. The parties were directed to file and serve objections to evidence. Both parties made objections and it was determined that those objections would be decided prior to the hearing.
The parties were able to reach agreement on all of the objections apart from one. Ms Gilroy objects to the whole of a document filed on 15 July 2019 by Mr Burgess which is in the form of an unsigned affidavit by a Mr Nicholas Holmes ('Mr Holmes' affidavit'). Ms Gilroy's objection is that Mr Holmes' affidavit…

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.

Continue reading Gilroy v Burgess

Details

AGLC: Gilroy v Burgess [2019] QIRC 185
Case: [2019] QIRC 185
Decision Date: 4 December 2019

CaseChat Overview and Summary

Gilroy v Burgess is a case heard by the Anti-Discrimination Commission of Queensland, where the primary issue is the admissibility of an affidavit in evidence on the grounds of irrelevance and the presence of scandalous and oppressive material. The case involves an allegation of sexual harassment made by Ms Gilroy against Mr Burgess. Ms Gilroy argued that evidence from Mr Holmes, referenced in Mr Burgess' affidavit, was not pertinent to her allegations and was potentially scandalous and oppressive.

The Commission considered whether Mr Holmes' evidence was relevant to the core issues as outlined in the statements of fact and contentions. The legal principle applied was that while the Commission is not bound by the rules of evidence, it must still act judicially and ensure procedural fairness to the parties. The Commission found that Mr Holmes' evidence was relevant because it could rationally affect the assessment of the likelihood of Ms Gilroy being offended, humiliated, or intimidated by Mr Burgess' conduct. The relevance was established under the criteria of the Anti-Discrimination Act 1991, which defines sexual harassment and outlines the circumstances relevant to determining if conduct would offend, humiliate, or intimidate another person.

The court dismissed the objection to the inclusion of Mr Holmes' affidavit in evidence. This decision was based on the relevance of the affidavit to the issues at hand and the requirement to act judicially, ensuring the interests of justice were upheld. The final order of the Commission was that the objection to the unsigned affidavit of Nicholas Holmes filed on 15 July 2019 is dismissed.

Orders

Orders of the court

The objection to the unsigned affidavit of Nicholas Holmes filed on 15 July 2019 is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In reply, Ms Gilroy submitted that Mr Holmes' evidence, as referred to above, is too remote from the conduct she alleges against Mr Burgess and, as a consequence, it has no utility in determining whether a reasonable person would anticipate that Ms Gilroy would be offended, humiliated or intimidated by Mr Burgess' alleged conduct. Conclusion Pursuant to s 208(1) of the Act, the Commission, in exercising the jurisdiction conferred upon it under the Act, is not bound by the rules of evidence. However, even though the Commission is not bound by the rules of evidence, the Commission must act judicially and afford the parties procedural fairness. In this respect, the rules of evidence are a method of enquiry best calculated to prevent error and elicit truth and, as such, the rules of evidence should only be departed from in the clearest of circumstances and where the interests of justice require it to be done.[1][1] Deanne Maree King v Workers' Compensation Regulator [2019] QIRC 134, [25] (Vice President O'Connor). The question is whether paragraphs 8, 9 and 10 of Mr Holmes' affidavit are relevant to an issue between the parties as determined by the statements of facts and contentions. That is, could Mr Holmes' evidence rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding?[2][2] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024, [2] (Gleeson CJ). Section 119 of the Act ('Meaning of sexual harassment') provides: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 for paragraph (a)—• physical contact such as patting, pinching or touching in a sexual way• unnecessary familiarity such as deliberately brushing against a personExample for paragraph (b)—sexual propositionsExamples for paragraph (c)—• unwelcome and uncalled for remarks or insinuations about a person’s sex or private life• suggestive comments about a person’s appearance or bodyExamples for paragraph (d)—• offensive telephone calls• indecent exposure Section 120 of the Act sets out a non-exhaustive, indicative list of the circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. Those circumstances include the sex, age, race or impairment of the other person, the relationship between the other person and the person engaging in the conduct and any other circumstance of the other person.

Ratio Decidendi

Legal Principle Established

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