Harron v Pearls Australasia Mirage 2 Pty Ltd
[2011] QCAT 465
•28 September 2011
| CITATION: | Harron v Pearls Australasia Mirage 2 Pty Ltd & Anor [2011] QCAT 465 |
| PARTIES: | Aimee Harron (Applicant) |
| v | |
| Pearls Australasia Mirage 2 Pty Ltd (First Respondent) Andrew Potts (Second Respondent) |
| APPLICATION NUMBER: | ADL037-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 21 September 2011 |
| HEARD AT: | Southport |
| DECISION OF: | Ms Michelle Howard, Member |
| DELIVERED ON: | 28 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The complaint of Aimee Harron is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – where complainant failed to attend the compulsory conference – adverse decision in absence of a party Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 28, 45, 72 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | No appearance |
| RESPONDENTS: | Ms Kylie Mitchell, Human Resources Manager for First Respondent Mr Andrew Potts, Second Respondent |
REASONS FOR DECISION
Ms Aimee Harron made a complaint to the Queensland Anti-Discrimination Commission (ADCQ). The complaint was subsequently referred to the tribunal about alleged contraventions of the Anti-Discrimination Act 1991, regarding sexual harassment and discrimination on the attribute of sex in the area of work.
A directions hearing was held by the tribunal on 6 June 2011, which Ms Harron attended by telephone. Directions were made that Ms Harron file and serve contentions by 11 July 2011; that the respondents file and serve contentions by 15 August 2011; and for a compulsory conference at Southport at 9.30 am on 21 September 2011. A copy of the directions made was forwarded to Ms Harron on 17 June 2011. Also, a further notice of compulsory conference was forwarded to Ms Harron on 7 September providing details of the venue of the conference at the Southport Magistrates Court; more information about the compulsory conference process generally; and advising in these terms:
‘If you fail to appear at the compulsory conference, the conference may proceed in your absence and the person presiding over the conference may make orders in your absence.’
Ms Harron filed her contentions on 12 July.
It is apparent that Ms Harron was aware of the scheduling of the compulsory conference since 6 June. It is apparent that she was receiving correspondence from the tribunal at the address held for her, since she attended the directions hearing following advice regarding the scheduling of it in correspondence sent to her by the tribunal. The detailed notice of compulsory conference was sent, as was all other correspondence to Ms Harron, to the same address.
Ms Harron failed to attend the compulsory conference. The respondents requested that I proceed to make orders under section 72 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) and dismiss the complaint.
If a party does not attend a compulsory conference and the presiding member is satisfied the absent party has been given appropriate notice of the conference,[1] under section 72, the conference may proceed in the party’s absence[2] and if the parties present agree,[3] the member presiding may make a decision adverse to the absent party and make any appropriate orders.[4] If a decision or order is made under section 72, the QCAT Act applies to it as if, the compulsory conference was a proceeding before the tribunal and it was a decision or order made by the tribunal constituted for the hearing.[5]
[1] QCAT Act, s 72(1) and 72(2).
[2] QCAT Act, s 72(1)(a).
[3] QCAT Act, s 72(1)(b).
[4] QCAT Act, s 72(1)(b).
[5] QCAT Act, s 72(3).
The High Court of Australia recently observed ‘resolution of disputes serves the public as a whole, not merely the parties to the proceedings’.[6] Therefore, parties must take care in their dealings in tribunal matters and act in their own interests throughout the conduct of the proceeding. Specifically, the QCAT Act places obligations on the tribunal to act expeditiously,[7] and on parties themselves to do so.[8]
[6] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
[7] QCAT Act, ss 3(b), 4(c) and 28.
[8] QCAT Act, s 45.
It seems to me that under section 72, I may make orders dismissing the complaint if the material filed in the tribunal could reasonably support a dismissal of the claim.
Ms Harron’s contentions allege essentially as follows:
a)Sometime after commencing in employment for Pearls Australasia Mirage 2 Pty Ltd, under the supervision of Mr Potts, she was informed by other work mates that comments had been made by Mr Potts about her appearance, in that following her interview for the position, Mr Potts made comments to another worker that Ms Harron had ‘huge knockers’.
b)She had overheard Mr Potts tell other employees at work that he had never employed an unattractive girl.
c)Mr Potts had spoken to her about her brother in unflattering terms, saying that he was ‘dickhead’, and also said that he was going to steal her brother’s girlfriend.
d)After a death in the family, she called in sick at work. Subsequently, she says that other employees informed her that Mr Potts had made comments to supervisors assuming that she was out partying and to the effect that she had a bad attitude and may not be around for much longer, despite having previously assured her that he was satisfied with her work.
e)She approached the Human Resources Department, which after investigating, confirmed that all of the allegations were true. She infers that she requested not to be further supervised by Mr Potts, but was not given an alternative.
f)She says she resigned to avoid further ‘being vilified’ by Mr Potts, who had already caused her hurt and humiliation.
g)Ms Harron states that she believes that she has been indirectly discriminated against and that Mr Potts remarks have sexual connotations which amount to sexual harassment.
h)Ms Harron seeks orders that Pearls Australasia provide her with a written reference; that sexual harassment policies be put in place by Pearls Australasia; and loss of wages and or compensation for hurt and humiliation.
Although Ms Harron refers to ‘being vilified’, she does not appear to allege vilification under the Anti-Discrimination Act 1991. Vilification has not been referred to the tribunal by the ADCQ, and the material does not disclose any acts which could be considered vilification.
The respondents seek orders dismissing the complaint. They have filed affidavits of two employees of Pearls Australasia in support of their contentions. The respondents say essentially that:
a)Ms Harron commenced casual employment with Pearls Australasia on 11 May 2010 and made a complaint on 7 July 2010 to their Human Resources Department about an inappropriate remark alleged to have been made by Mr Potts after interviewing her for the position.
b)Ms Harron had no guarantee of minimum hours or on-going employment. She worked a total of 18 shifts during her employment and worked her last shift on 18 June 2010 although she did not formally resign until 19 July 2010.
c)File notes were kept regarding Ms Harron’s attendance at and attitude towards work. These indicate that:
·On her first shift on 11 May, she said she did not like the work and most likely would not return.
·On 12 May, there was bad feedback regarding her attitude and that she had said she was finding it difficult to make the transition back to work after a long period away from work.
·On 15 May, Ms Harron told co-workers she does not want to work and is going to leave.
·On 17 May, she arrived late for work.
·On 22 May, she attended work but went home sick after 2 hours.
·On 24 June, she called in sick.
·On 2 July, Ms Harron did not attend work: she left a message with another staff member indicating a death in the family but did not contact the hotel or her supervisor.
·On 8 July, she did not attend work and did not leave a message.
d)Pearls Australasia did investigate the complaint. It observes that Ms Harron did not complain to her employer about the remark until about the time she decided to leave.
e)The investigation undertaken by Pearls Australasia reveals some differing views about the comment actually made by Mr Potts, apparently in response to a question. One person in the group did not hear anything inappropriate. One member said there was a comment that ‘she had pretty good breasts’. Mr Potts indicated that he had not intended to hurt or offend anyone, and the comment was a one-off comment made before Ms Harron was employed.
f)The affidavit of Courtney Dunn, who did not personally hear the comment, rather her brother did, indicates that she told Ms Harron of the remark. She did not consider that Ms Harron was offended and reports that she laughed at the time.
g)Pearls Australasia has a sexual harassment policy and an anti-discrimination policy which it has reinforced with staff. After the investigation it reinforced that such behaviour would not be tolerated.
h)Mr Potts denies making comments to the effect that he had never employed an unattractive girl or making reference to Ms Harron’s brother or his girlfriend as alleged by Ms Harron. The hotel investigation did not establish whether the comments were or were not made, but Pearls Australasia argues that even if they were this would not constitute sexual harassment.
Ms Harron did not call in sick following the family death. She asked another staff member to pass on a message. Mr Potts denies making the comments alleged following this event. The investigation did not establish whether or not the comments were made. However, Mr Potts did not make the comments that Ms Harron had a bad attitude and may not be around much longer.
j)The hotel did not inform Ms Harron that all of her complaints were true. It informed her that it had investigated, and accepted that inappropriate remarks had been made and it had taken action to ensure it did not happen again.
k)A request was not made at any time by Ms Harron to Human Resources that she not be supervised by Mr Potts.
l)Ms Harron could have continued in her employment. However, the affidavits of Courtney Dunn and Sansha Harvey indicate that she left the employment for her own reasons and not because of her work environment. Sansha Harvey also says that Ms Harron has alleged that another person had been picking on her while at work.
The Anti-Discrimination Act 1991, provides that, among other circumstances, sexual harassment occurs if a person makes a remark with sexual connotations relating to that other person and the person does so with the intention of offending, humiliating or intimidating the other person or in circumstances that a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated.[9] For applying the reasonable person test, relevant circumstances include the sex and age of the other person, and the relationship between the person and the person engaging in the conduct.[10]
[9] QCAT Act, s 119.
[10] QCAT Act, s 120.
It is common ground that a remark concerning Mr Harron’s appearance, and in particular, her breasts, was made on one occasion, it seems after her interview for employment at Pearls Australasia and before she commenced employment. It also appears to be common ground that the remark was not made to Ms Harron, and that she later heard about it from another person who also did not hear what was said. There is no doubt that the remark was inappropriate whatever the precise words used may have been.
The other allegations of Ms Harron concerning comments regarding her brother and his girlfriend and not employing unattractive persons are denied by Mr Potts. Even if they were made they are not comments which could amount to sexual harassment under the Act.
There is nothing to suggest that Mr Potts made the remark about Ms Harron’s appearance with the intention of offending, humiliating or intimidating Ms Harron. So, I must consider whether a reasonable person would have anticipated the possibility of it offending, humiliating or intimidating Ms Harron.
Having regard to Ms Harron’s circumstances as far as the material reveals them, there is nothing which suggests to me that a reasonable person would have anticipated her humiliation as a result of being told of this one comment. I do not consider that a reasonable person would have anticipated the possibility of her humiliation.
Ms Harron also alleges indirect discrimination ‘in breach of section 14 of the Anti-Discrimination Act 1991’. Section 14 prohibits discrimination in the pre-work area, including for deciding who should be offered work; or in failing to offer work. Under section 15, a person must not discriminate in the work area by, among other things, treating a worker unfavourably in any way in connection with work.
Indirect discrimination on the basis of the attribute of sex[11] happens in circumstances when a person imposes a term with which the person with the attribute does not or can not comply; and with which a higher proportion of people without the attribute comply or are able to comply; and that is not reasonable: section 11.
[11] Section 7(a).
If Ms Harron is claiming that she was discriminated against in the pre-work area on the basis of her sex, she does not make any allegation which supports a finding of this kind. Alternatively, if she is claiming that she was indirectly discriminated against in some other way at work, the only possibility seems to be that she alleges that her employer required her supervision to be continued by Mr Potts. This is denied by Pearls Australasia which says that she did not raise this issue at all with it.
However, even if the tribunal accepted that the issue was raised by Ms Harron with her employer, and it is alleged that an unreasonable term has been imposed by her ongoing supervision by Mr Potts, the allegation does not satisfy the other requirements of the Act.
In the circumstances, I consider that the evidence available can reasonably support orders dismissing Ms Harron’s claim under section 72 of the QCAT Act. Having regard to the principles which emerge from the High Court’s recent decision in Aon Risk Services Australia Ltd v Australian National University, and the provisions of the QCAT Act requiring both the tribunal and parties to act expeditiously regarding a proceeding, I consider it is appropriate to do so. I make orders accordingly.
0
1
2