Stephen v Sunshine Coast Council
[2022] QIRC 46
•15 February 2022 – delivered ex tempore
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Stephen v Sunshine Coast Council [2022] QIRC 46 |
PARTIES: | Stephen, Sarah v Sunshine Coast Council |
CASE NO.: | AD/2021/49 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 15 February 2022 – delivered ex tempore |
HEARING DATE: | 15 February 2022 |
MEMBER: | Power IC |
| HEARD AT: | Brisbane |
ORDER: | The application in existing proceedings is dismissed. |
| CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – anti-discrimination – discrimination in the workplace – application to strike out – dismissal of complainant's complaint – whether complainant's statement of facts and contentions should be struck out – whether the complaint should be struck out because complainant's statement of facts and contentions contain out of time allegations and amended complaint |
LEGISLATION: | Anti-Discrimination Act 1991 (Qld), ss 7, 9, 10, 11, 15, 175 and 178 |
| CASES: | Dey v Victorian Railways Commissioners (1949) 78 CLR 62 |
| APPEARANCES: | Mr D.G. Pratt of Franklin Athanasellis Cullen Lawyers for the Complainant. Mr B.P. Dwyer of McCullough Robertson Lawyers for the Respondent. |
Reasons for Decision (ex tempore)
This interlocutory matter relates to a complaint filed by the Complainant[1] in the Queensland Human Rights Commission ('QHRC') regarding matters alleged to have arisen in her workplace at the Sunshine Coast Council, who is the Applicant for the purposes of this matter.[2] Following an unsuccessful conciliation, the QHRC referred the complaint to the Queensland Industrial Relations Commission ('QIRC') on 27 September 2021. The QHRC referral advised that the complaint had been treated as alleging impairment discrimination in the area of work pursuant to ss 7(h), 10, 11 and 15 of the Anti-Discrimination Act1991 (Qld) ('AD Act').
[1] Ms Sarah Stephen.
[2] For clarity, the Applicant is the Respondent in the substantive matter, however, has been referred to as 'the Applicant' throughout this decision.
The Complainant in this matter filed a statement of facts and contentions on the 29 November 2021 pursuant to a directions order issued by the QIRC. The Complainant's statement of facts and contentions alleges direct discrimination on the basis of race or perceived race in contravention of ss 9(a) and 15(f) of the AD Act.
The Applicant filed an application in existing proceedings on 13 December 2021 seeking interlocutory orders staying the further directions order directing the filing of a response to the Complainant's statement of facts and contentions and final orders striking out the Complainant's statement of facts and contentions and dismissing the complaint. The QIRC issued a further directions order on 14 December 2021 directing parties to file and serve written submissions with respect to the application in existing proceedings prior to the matter being heard at the QIRC on 15 February 2022.
The Applicant seeks to have the complaint dismissed on the following basis:
(a)the complaint filed in the QHRC alleged impairment discrimination and reprisal, however, the Complainant's statement of facts and contention does not press these allegations; rather, it alleges racial discrimination; and
(b)the Complainant's statement of facts and contentions includes a range of out of time allegations.
The Applicant submits that the QIRC's jurisdiction to determine the complaint is limited to the bounds of the complaint and the Complainant has not sought and the QIRC has not granted leave to include the out of time matters or the racial discrimination allegations. The Applicant submits that the statement of facts and contentions relates to matters outside the complaint and therefore outside the QIRC's jurisdiction and ought be struck out and the complaint dismissed.
The Complainant submits that the complaint filed in the QHRC was on the grounds of victimisation and reprisal, and the statement of facts and contentions filed in the QIRC alleges racial discrimination between October 2018 and 7 July 2020. The Complainant does not dispute that the allegation regarding racial discrimination did not form part of the original complaint, nor that the statement of facts and contentions refers to matters alleged to have occurred outside of the statutory time limit.
The Complainant relies upon s 175 of the AD Act, which provides that the QIRC may deal with a complaint made outside of the one-year time limit if it considers that, on the balance of fairness between the parties, it would be reasonable to do so. The Complainant also relies upon s 178 of the AD Act, which provides that the QIRC may allow a Complainant to amend a complaint even if the amendment concerns matter not included in the complaint.
I am guided by the principles outlined in Dey v Victorian Railways Commissioners,[3] which provide that striking out should be sparingly granted to prevent an abuse of process when a claim is groundless or futile. The QIRC has jurisdiction to hear and decide complaints about contraventions of the AD Act that are referred to the QIRC under s 174B of the AD Act. Section 175 of the AD Act allows the QIRC to deal with matters outside of the time limit, and s 178 allows the QIRC to amend the complaint to include matters not included in the original complaint.
[3] (1949) 78 CLR 62.
There is a clear pathway for the Complainant in this matter to have her complaint considered on its merits, with the Complainant's representative making oral application today seeking leave from the QIRC to allow the complaint to be amended and the out of time allegations to be included. To strike out the complaint before providing the Complainant with an opportunity to be heard with respect to ss 175 and 178 would, in my view, be unfair. It is also not possible to assess the merits of the substantive complaint until such an application has been determined. I recognise that the Applicant should not be required to respond to the Complainant's statement of facts and contentions in its current form, as no decision has been made as to whether the discretion in ss 175 and 178 will, in fact, be exercised.
If it was to be the case that the QIRC ultimately did not give leave for the complaint to be amended to include racial discrimination, it may well be the case that a strike out application could be reasonably considered at that point. However, to do so at this juncture would be premature.
I am not satisfied that this claim is groundless or futile, and so order that the application in existing proceedings be dismissed.
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