Miers v State of Queensland

[2011] QCAT 77

CITATION: Miers v State of Queensland & Ors [2011] QCAT 77

APPLICANT:	Georgia Anne Miers
v
FIRST RESPONDENT:	State of Queensland
SECOND RESPONDENT:	Aaron Walker
THIRD RESPONDENT:	Karen McSwaine

APPLICATION NUMBER:   ADL061-10

MATTER TYPE: Anti-discrimination matters

HEARING DATE:     8 March 2011

HEARD AT:  Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 8 March 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Leave is granted for the parties to be legally represented in the proceedings

CATCHWORDS :  LEGAL REPRESENTATION – leave sought by parties in anti-discrimination claim – whether complex questions of fact or law.

APPEARANCES and REPRESENTATION (if any):

The hearing was conducted on the papers in the absence of the parties.

REASONS FOR DECISION

1. A complaint by Georgia Miers that she was subjected to sexual harassment and unlawful discrimination based on the attribute of her sex by Aaron Walker and to unlawful discrimination based on the attribute of impairment by Karen McSwaine was referred to the Tribunal under the provisions of the Anti-Discrimination Act 1991.Ms Miers has also complained that the State of Queensland is vicariously liable for the unlawful behaviour of Mr Walker and Ms McSwaine.

2. Ms Miers has filed her contentions in which she has set out the basis for her complaint against each of the respondents and the respondents have filed their contentions responding to the complaint.

3. The facts in the complaint about sexual harassment and discrimination on the attribute of her sex are not complex.  Ms Miers alleges that Mr Walker placed a mobile phone in her hands which displayed a video image and sound containing an explicit sexual message.  Mr Walker does not dispute that he had shown this image to Ms Miers.

4. The facts in the complaint about impairment discrimination are not as straightforward.  Ms Miers alleges that Ms McSwaine had made excessive comments about Ms Miers’s work in the Missing Persons Unit, put notes on Ms Miers’s work with incorrect instructions, often became angry with her and criticised Ms Miers personally, distributed files unevenly and reported petty and incorrect information to Ms Miers’s bosses.  It is contended that this conduct was unfavourable treatment based on Ms Miers’s impairment arising from a repetitive strain injury.

5. This conduct is denied by Ms McSwaine.  If the complaint made against Ms McSwaine was restricted to the facts stated in the preceding paragraph, then the Tribunal would likely have found that the factual element of the complaint against Ms McSwaine was not complex.  However Ms Miers also complains that Ms McSwaine was responsible for the implementation of the QPrime computer system in 2006 in the Missing Persons Unit and that Ms McSwaine had set guidelines for work with that system that Ms Miers could not meet.

6. The contentions filed by Ms Miers on this part of her complaint state that a role that, prior to the introduction of the new system had been the responsibility of hundreds of general duties police personnel, was subsequently carried out by 6 staff members in the Missing Persons Unit.  Ms Miers contends that almost half of the staff members in the Unit left as a result of the implementation of the new system.  She contends that the manner in which the new system was implemented was unreasonable.

7. A significant amount of evidence will need to be produced by Ms Miers to substantiate her contentions.  This aspect of the complaint, alleging indirect discrimination on the part of Ms McSwaine, appears to be based on a complex web of facts that at the post conference stage of the proceeding must now be clearly set out in witness statements and then sought to be proved through the testing of the evidence at the hearing.

8. In addition, the legal issues involved in this aspect of the complaint as contended appear to be complex.  While complaints based on allegations of indirect discrimination may not always be inherently legally complex, the respondents have raised in their contentions a claim that the Tribunal has no jurisdiction to hear the complaint of indirect discrimination against the State of Queensland.  It is not clear why the respondents have made that claim but it may be linked to the fact that Ms Miers’s complaint against her employer, the State of Queensland, is based on vicarious liability only.  The respondents appear to contend that Ms Miers has gone beyond a claim for vicarious liability and has alleged that the State of Queensland is directly liable for conduct amounting to indirect discrimination.

9. A decision about what the Tribunal can properly hear and determine in this complaint is likely to involve complex issues of law.  The Tribunal is satisfied that in this case it is in the interests of justice that the Tribunal is assisted with input from legal representatives during the hearing stage of the proceedings so that its final determination can be informed by relevant evidence and by focused submissions on law from the parties.

10. Leave is granted to the parties to be legally represented to the finalisation of the hearing of this complaint.