Wearne v Dib

[2022] QIRC 454

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Wearne v Dib [2022] QIRC 454

Wearne, Elly
(Complainant)

v

Dib, Mahamad
(Respondent)

CASE NO:

AD/2020/53

PROCEEDING:

Referral of a complaint

DELIVERED ON:

23 November 2022

HEARING DATES:

MEMBER:

HEARD AT:

ORDERS:

30 May to 2 June 2022

Pidgeon IC

Brisbane

1.      The complaint is dismissed.

CATCHWORDS:

LEGISLATION:

CASES:

ANTI-DISCRIMINATION – REFERRAL OF COMPLAINT – complainant was employed by the respondent – complaint made with Queensland Human Rights Commission alleging complainant had been subject of unlawful discrimination in contravention of the Anti-Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission for determination – where the complainant alleges sexual harassment, indirect sex discrimination and victimisation in the course of her employment – whether the complainant was sexually harassed – whether the complainant was subject of direct and/or indirect discrimination on the basis of sex – whether the complainant was subject to victimisation – whether less favourable treatment occurred – onus not discharged – witness evidence – witness credibility –  complaint dismissed

Anti-Discrimination Act 1991 (Qld) ss 7, 8, 9, 10, 11, 15, 164A, 204

Briginshaw v Briginshaw (1938) 60 CLR 336

Camden v McKenzie [2007] QCA 136

Hill v Hughes [2019] FCCA 1267

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Sherry v Toyota Motor Corporation Australia Limited [2020] NSWDC 827

APPEARANCES:

Mr C Van Oeveren of Supportah Ops Pty Ltd for the Complainant

Mr A S McDougall of counsel instructed by Mr T Dib of Dib and Associates for the Respondent

Reasons for Decision

1. Ms Elly Wearne (the Complainant) was employed on a part-time basis as a Senior Hairdresser at Michael Dib Hairdressing, a salon owned by Mr Mahamad "Michael" Dib (the Respondent) at Pacific Fair Shopping Centre, Broadbeach Waters. Ms Wearne commenced her role at the salon on or about May or April of 2019 and left the position in July 2019.

1. The Complainant contends that in breach of the Anti-Discrimination Act 1991 (Qld) (the AD Act), the Respondent subjected her to indirect sex discrimination, sexual harassment and victimisation during the course of her employment.

2. Ms Wearne first lodged her complaint with the Queensland Human Rights Commission (QHRC) on 31 December 2019, and the matter was subsequently referred to the Queensland Industrial Relations Commission (QIRC) on 8 June 2020.[1]

   [1] The referral was made pursuant to the Anti-Discrimination Act 1991 (Qld) s 164A.

3. The Respondent denies all claims made by the Complainant.

1. Pursuant to s 204 of the AD Act, it is for the Complainant to prove on the balance of probabilities that the Respondent violated the provisions of the Act. The required standard of proof is met when the Complainant can successfully establish that the claim being made is more probable than not.

1. The standard of evidence is summarised in Briginshaw v Briginshaw as follows:[2]

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable…