Menere v Poolrite Equipment Pty Ltd - [2012] QCAT 252

CITATION:

Menere v Poolrite Equipment Pty Ltd and Anor [2012] QCAT 252

PARTIES:	Nicholas John Menere (Complainant)
v
Poolrite Equipment Pty Ltd (First Respondent) Kamal Singh (Second Respondent)

APPLICATION NUMBER:

ADL001-09

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

25 October 2010
3 May 2011
31 January 2012
Written submissions received by 19 March 2012

HEARD AT:

Brisbane

DECISION OF:

N Jarro, Member

DELIVERED ON:

15 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The second respondent must pay to the complainant compensation of $8,000 within 30 days.

2. Each party bear their own costs.

CATCHWORDS :

ANTI-DISCRIMINATION – complaint of sexual harassment in workplace – co-workers – assembly line

Anti-Discrimination Act 1991, ss 118-120, 133, 174A, 209, 210

Johanson v Blackledge (2001) 163 FLR 58
KW v BG Limited, DP & DF [2009] QADT 7

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Nicholas Menere (self represented), assisted by Peter G Williams & Associates on 25 October 2010 and 31 January 2012
RESPONDENTS:	First respondent Poolrite Equipment Pty Ltd (self represented) and assisted by Livingstones Australia on 25 October 2010
Second respondent Kamal Singh (self represented)

REASONS FOR DECISION

The complainant seeks financial compensation against the first and second respondents. He claims he was sexually harassed by the second respondent in the first half of 2008. The first respondent employed both the complainant and the second respondent as casual assembly line workers.
On 23 February 2009, a complaint was lodged with Anti-Discrimination Commission Queensland. The initial complaint made allegations against another work colleague, but in September 2009, the complainant elected not to pursue the allegations against the other work colleague. Instead he focused his claim on the nominated first and second respondents and alleged contravention of s 118 (and by implication s 133) of the Anti-Discrimination Act 1991. In his complaint lodged with the Queensland Civil and Administrative Tribunal, the complainant sought an apology from both respondents, an order for payment of money and costs.

Jurisdiction

In accordance with ss 9 and 10 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), the Queensland Civil and Administrative Tribunal (“the Tribunal”) has original jurisdiction including jurisdiction conferred upon it under an enabling Act. The enabling Act in the present instance is the Anti-Discrimination Act 1991 (“the Act”). By virtue of s 174A of the Act, the Tribunal can hear and decide the complaint said to have contravened the Act. If the complaint is proven, the Tribunal can make an order under s 209. In addition, s 210 of the Act enables the Tribunal to order a dismissal of the complaint.
Section 118 of the Act bans a person from sexually harassing another person. Section 119 of the Act provides:
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…

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 Menere v Poolrite Equipment Pty Ltd

Details

AGLC: Menere v Poolrite Equipment Pty Ltd [2012] QCAT 252
Case: [2012] QCAT 252
Decision Date: 15 June 2012

CaseChat Overview and Summary

The case before the court involved a complaint of sexual harassment against Poolrite Equipment Pty Ltd, with the complainant, Menere, alleging harassment by her co-workers while working on an assembly line. The court was tasked with determining whether the respondent, Poolrite Equipment Pty Ltd, was vicariously liable for the actions of its employees under anti-discrimination legislation.

The central legal issue revolved around whether the employer could be held vicariously liable for the sexual harassment perpetrated by the employees against the complainant. The court had to consider whether Poolrite Equipment Pty Ltd had breached its obligations under the anti-discrimination laws by failing to prevent or adequately address the harassment. Additionally, the court needed to assess the adequacy of the employer’s response to the complaint once it was made.

In delivering the judgment, the court found that Poolrite Equipment Pty Ltd was indeed vicariously liable for the actions of its employees. The employer had not taken sufficient steps to prevent the harassment and had failed to respond appropriately once the complaint was made. The court held that these failings constituted a breach of the anti-discrimination legislation. As a result, the court ordered the employer to pay the complainant $8,000 in compensation within 30 days. Each party was also ordered to bear their own costs.

Orders

Orders of the court

1. The second respondent must pay to the complainant compensation of $8,000 within 30 days.

2. Each party bear their own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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