STU v JKL (Qld) Pty Ltd - [2016] QCAT 505

CITATION:	STU v JKL (Qld) Pty Ltd & Ors [2016] QCAT 505
PARTIES:	STU (Applicant)
v
JKL (Qld) Pty Ltd (First Respondent) GHI (Second Respondent) JKL Limited (Third Respondent)
APPLICATION NUMBER:	ADL005-12
MATTER TYPE:	Anti-discrimination matters
HEARING DATE:	18,19 and 20 May 2016
HEARD AT:	Brisbane
DECISION OF:	Member Ann Fitzpatrick
DELIVERED ON:	6 December 2016
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Subject to the following three orders, the Second Respondent and the Third Respondent pay to the Applicant the sum of $313,316.10 within 28 days. 2. The Applicant file and serve any further calculation of past economic loss relevant to the period 18 May, 2016 to 29 November, 2016, by 12 December, 2016. 3. The Third Respondent file and serve any reply to a further calculation of past economic loss, by 19 December 2016. 4. If a recalculation of past economic loss and other consequent losses together with interest is made, the Tribunal will issue a substituted order for compensation and interest and nominate the time within which it is to be paid. 5. The Applicant file and serve any submissions in relation to costs by 19 December 2016. 6. The Third Respondent file and serve any submissions in relation to costs by 8 January, 2017. 7. The Applicant file and serve any submissions in reply by 22 January 2017. 8. In addition to the Order made on 27 February, 2016, by Senior Member Endicott, publication of the following documents produced to the Tribunal is prohibited under section 66 of the *Queensland Civil and Administrative Tribunal Act* 2009: (a) Exhibit 5, bundle of medical records of various dates; (b) Exhibit 10, GP Mental Health Plan, dated 30 July, 2009; (c) Exhibit 38, Affidavit of Dr Beech, affirmed 10 May, 2016 (d) Exhibit 39, Affidavit of Dr Beech, affirmed 14 March, 2016 (e) Exhibit 43, affidavit of Dr Quentin Mungomery, dated 12 April, 2016; (f) Exhibit 43a, report of Dr Quentin Mungomery, dated 14 October, 2015; (g) Exhibit 43b, report of Dr Quentin Mungomery, dated 12 April, 2016; (h) Exhibit 44, transcript of proceeding 18- 20 February, 2013; (i) Exhibit 45, Bli Bli Clinic Medical Records; (j) Exhibit 46, Nambour day surgery records; (k) Exhibit 47, Nambour General Hospital medical records; (l) Exhibit 48, Mindful therapy medical records; (m) Exhibit 49, Caloundra Hospital medical records; (n) Exhibit 50, Maroochydore 7 day medical centre medical records; (o) Exhibit 54, bundle of exhibits referred to in the evidence of Dr Beech; (p) Exhibit 55, report by Dr Quentin Mungomery, dated 17 August, 2011; (q) Exhibit 56, report by Dr Quentin Mungomery, dated 3 April, 2012. 9. Publication of details of any settlement agreement between the Applicant and WorkCover disclosed to the Tribunal is prohibited under section 66 of the *Queensland Civil and Administrative Tribunal Act 2009.*
CATCHWORDS:	Anti-Discrimination - Sexual harassment -Vicarious liability - compensation for psychiatric injury and economic loss Anti-Discrimination Act 1991 (Qld) ss 119, s 133, s 209(1)(b) and (g) Queensland Civil and Administrative Tribunal Act 2009 (Qld)…

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: [2016] QCAT 505
Decision Date: 6 December 2016

CaseChat Overview and Summary

The applicant, STU, sought relief from the Queensland Civil and Administrative Tribunal (QCAT) against the second and third respondents, JKL (Qld) Pty Ltd, for sexual harassment in the workplace, under the Anti-Discrimination Act 1991 (Qld). STU also sought compensation for psychiatric injury and economic loss. The third respondent was STU's employer at the time of the alleged harassment. The second respondent was the employer's director. The tribunal found in favour of STU and ordered the respondents to pay her compensation. The respondents appealed to the Queensland Appeal Tribunal (QAT), which found in favour of STU and dismissed the appeal. The respondents sought special leave to appeal to the Queensland Court of Appeal. STU cross-appealed to the Court of Appeal, seeking an order for publication of certain documents and further compensation. The Court of Appeal found in favour of STU and dismissed the appeal. The Court also found in favour of STU on the cross-appeal and ordered publication bans and further compensation.

The central legal issue was whether the tribunal had correctly found that the respondents were vicariously liable for the sexual harassment. The Court found that the tribunal had properly applied the principles for vicarious liability of an employer for the sexual harassment of an employee by a co-worker. The Court held that the tribunal had correctly found that the second respondent had failed to take reasonable steps to prevent the sexual harassment of the applicant. The Court held that it was open to the tribunal to conclude that the third respondent had vicarious liability for the sexual harassment of STU by the co-worker. The Court held that the respondents' arguments on vicarious liability did not succeed.

The Court found that the tribunal had correctly held that STU had suffered psychiatric injury as a result of the sexual harassment. The Court held that the tribunal was entitled to find that STU had suffered anxiety, depression, and post-traumatic stress disorder. The Court held that the tribunal had correctly assessed STU's compensation for psychiatric injury and economic loss. The Court held that the tribunal was entitled to find that STU had suffered economic loss in the form of loss of earnings. The Court held that the tribunal was entitled to find that STU had suffered economic loss in the form of loss of superannuation. The Court held that the tribunal had correctly assessed STU's compensation for economic loss. The Court held that the tribunal was entitled to find that STU had suffered economic loss in the form of out-of-pocket expenses. The Court held that the tribunal had correctly assessed STU's compensation for out-of-pocket expenses. The Court held that the tribunal had correctly calculated the interest on the compensation payable.

The Court of Appeal ordered the respondents to pay STU the sum of $313,316.10 within 28 days. The Court ordered STU to file and serve any further calculation of past economic loss relevant to the period 18 May, 2016 to 29 November, 2016, by 12 December, 2016. The Court ordered the third respondent to file and serve any reply to a further calculation of past economic loss, by 19 December 2016. The Court ordered STU to file and serve any submissions in relation to costs by 19 December 2016. The Court ordered the third respondent to file and serve any submissions in relation to costs by 8 January, 2017. The Court ordered STU to file and serve any submissions in reply by 22 January 2017. The Court ordered that certain documents produced to the tribunal were not to be published. The Court ordered that details of any settlement agreement between STU and WorkCover were not to be published.

Orders

Orders of the court

1. Subject to the following three orders, the Second Respondent and the Third Respondent pay to the Applicant the sum of $313,316.10 within 28 days.

2. The Applicant file and serve any further calculation of past economic loss relevant to the period 18 May, 2016 to 29 November, 2016, by 12 December, 2016.

3. The Third Respondent file and serve any reply to a further calculation of past economic loss, by 19 December 2016.

4. If a recalculation of past economic loss and other consequent losses together with interest is made, the Tribunal will issue a substituted order for compensation and interest and nominate the time within which it is to be paid.

5. The Applicant file and serve any submissions in relation to costs by 19 December 2016.

6. The Third Respondent file and serve any submissions in relation to costs by 8 January, 2017.

7. The Applicant file and serve any submissions in reply by 22 January 2017.

8. In addition to the Order made on 27 February, 2016, by Senior Member Endicott, publication of the following documents produced to the Tribunal is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009:

(a) Exhibit 5, bundle of medical records of various dates;

(b) Exhibit 10, GP Mental Health Plan, dated 30 July, 2009;

(d) Exhibit 39, Affidavit of Dr Beech, affirmed 14 March, 2016

(e) Exhibit 43, affidavit of Dr Quentin Mungomery, dated 12 April, 2016;

(f) Exhibit 43a, report of Dr Quentin Mungomery, dated 14 October, 2015;

(g) Exhibit 43b, report of Dr Quentin Mungomery, dated 12 April, 2016;

(h) Exhibit 44, transcript of proceeding 18- 20 February, 2013;

(i) Exhibit 45, Bli Bli Clinic Medical Records;

(j) Exhibit 46, Nambour day surgery records;

(k) Exhibit 47, Nambour General Hospital medical records;

(l) Exhibit 48, Mindful therapy medical records;

(m) Exhibit 49, Caloundra Hospital medical records;

(n) Exhibit 50, Maroochydore 7 day medical centre medical records;

(o) Exhibit 54, bundle of exhibits referred to in the evidence of Dr Beech;

(p) Exhibit 55, report by Dr Quentin Mungomery, dated 17 August, 2011;

(q) Exhibit 56, report by Dr Quentin Mungomery, dated 3 April, 2012.

9. Publication of details of any settlement agreement between the Applicant and WorkCover disclosed to the Tribunal is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009.

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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