Parker v Two Champions Pty Ltd - [2018] QCAT 13

CITATION:	Parker v Two Champions Pty Ltd & Ors [2018] QCAT 13
PARTIES:	Emily Rose Parker (Applicant)
v
Two Champions Pty Ltd, Two Champions (Stathpine) Pty Ltd, Sirichand Jhanbia, Harwinder Singh Gohal, Ram Singh, Sanjay Kumar (Respondents)
APPLICATION NUMBER:	ADL070-16
MATTER TYPE:	Anti-discrimination matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Cranwell
DELIVERED ON:	24 January 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Mr Ambresh Jhanbia be joined as a party to the proceeding. 2. The application for joinder otherwise be dismissed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – where claim of sexual harassment in the workplace – whether manager should be joined – whether franchisor should be joined Anti-Discrimination Act 1991 (Qld), s 133, s 138, s 177 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 40, s 42, s 74 Bartlett v Body Corporate for Beaches Surfers Paradise [2011] QCAT 091 Black and White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77 Just GI P/L v Pig Improvement Co Aust P/L [2001] QCA 48 MGM Containers Pty Ltd v Wockner (2006) QCA 502

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Background

On 17 March 2016, Ms Parker lodged a complaint with the Anti-Discrimination Commission Queensland (the Commission) claiming to have been discriminated against and sexually harassed during the course of her employment. The claims made in the complaint are said to have occurred from 3 November 2014 in the course of her employment with Nando’s franchises at Chermside and Strathpine.
On 19 July 2016, the Commission exercised its discretion to accept the complaint even though it was lodged after the expiration of the one year time limit set out in s 138 of the Anti-Discrimination Act 1991 (Qld) (the ADA).
On 24 August 2016, Ms Parker required the Commission to refer her complaint to the Tribunal.
On 8 September 2016, a complaint against Two Champions Pty Ltd, Two Champions (Strathpine) Pty Ltd, Sirichand Jhanbia, Hawrinder Singh Gohal, Ram Singh and Sanjay Kumar was referred to the Tribunal.
On 23 August 2017, Ms Parker lodged an application for miscellaneous matters with the Tribunal, seeking to join Nando’s Australia Pty Ltd and Mr Ambresh Jhanbia to the proceedings.
The Tribunal has directed Ms Parker, Nando’s Australia Pty Ltd and Mr Ambresh Jhanbia to provide written submissions in relation to the joinder application, and has directed that the application for joinder be determined on the papers.

Applicable Law

[7]Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides for the joinder of parties as follows:
Joining parties
(1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that--
(a) the person should be bound by or have the benefit of…

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: [2018] QCAT 13
Decision Date: 24 January 2018

CaseChat Overview and Summary

In the matter of Parker v Two Champions Pty Ltd, the plaintiff, Ms Parker, brought an action against Two Champions Pty Ltd for sexual harassment in the workplace. Ms Parker alleged that she was sexually harassed by her manager, Mr Jhanbia, while she was employed at one of Two Champions Pty Ltd’s franchised outlets. Ms Parker brought the proceeding against Two Champions Pty Ltd only. Ms Parker applied to the court for an order that Mr Jhanbia be joined as a party to the proceeding. Ms Parker also sought an order that the franchisor, Two Champions Pty Ltd, be joined as a party to the proceeding.

The court was required to consider whether there were any grounds to join Mr Jhanbia and/or Two Champions Pty Ltd as parties to the proceeding. The court noted that joinder of parties is a matter within the court’s discretion, and that the court should consider whether the joinder would cause prejudice to the existing parties or would be an efficient means of resolving the dispute. The court also considered the provisions of the relevant legislation and case law on the joinder of parties in civil proceedings.

The court found that Mr Jhanbia should be joined as a party to the proceeding because his presence was necessary to determine Ms Parker’s claims against him. The court noted that Mr Jhanbia was directly involved in the alleged sexual harassment and that his presence was necessary to determine his liability, if any, to Ms Parker. The court also found that Two Champions Pty Ltd should not be joined as a party to the proceeding because it was not directly involved in the alleged sexual harassment and because there was no evidence that it was vicariously liable for Mr Jhanbia’s conduct.

The court ordered that Mr Ambresh Jhanbia be joined as a party to the proceeding. The court dismissed the application for joinder in so far as it sought to join Two Champions Pty Ltd as a party to the proceeding.

Orders

Orders of the court

1. Mr Ambresh Jhanbia be joined as a party to the proceeding.

2. The application for joinder otherwise be dismissed.

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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