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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Gilroy v Burgess  QIRC 185
4 December 2019
25 November 2019
The objection to the unsigned affidavit of Nicholas Holmes filed on 15 July 2019 is dismissed
ANTI-DISCRIMINATION – objection to admission of whole of affidavit into evidence on ground of irrelevance and on grounds the affidavit contains material that is scandalous and oppressive – objection dismissed
Anti-Discrimination Act 1991 (Qld), s 119 and s 208
Industrial Relations (Tribunals) Rules 2011 (Qld), r 52
Sex Discrimination Act 1984 (Cth), s 28A
Goldsmith v Sandilands  HCA 31; (2002) 76 ALJR 1024
Horman v Distribution Group Ltd  FMCA 52
Smith v Hehir and Financial Advisors Australia Pty Ltd  QADT 11
Deanne Maree King v Workers' Compensation Regulator  QIRC 13
Whittle & Hughes v Paulette & Specific Pools  QADT 5
Mr M. Rawlings instructed by Caxton Legal Centre for the Complainant
Mr P. Travers instructed by McMillan Criminal Law for the Respondent
Reasons for Decision
- Between September 2016 and June 2017, Ms Sherie Gilroy worked as a cleaner on the rail corridor duplication project between Coomera and Helensvale ('the Project'). During that time, Ms Gilroy was employed by Golding Contractors Pty Ltd. Between 14 June 2017 and 30 June 2017, Ms Gilroy worked on the Project as a Protection Officer and was employed by Swetha International Pty Ltd.
- Workpac Pty Ltd provided labour hire services for the Project over the same periods of time Ms Gilroy worked on the Project. In doing so, it employed Mr Trent Burgess.
- On 1 May 2018, Ms Gilroy made a complaint to the Anti-Discrimination Commission Queensland that she had been sexually harassed by Mr Burgess in contravention of the Anti-Discrimination Act 1991 ('the Act'). Ms Gilroy's complaint was made against Mr Burgess and Workpac.
- On 3 September 2018, Ms Gilroy's complaint against Mr Burgess and Workpac was referred to this Commission. In January 2019, Ms Gilroy discontinued her complaint against Workpac.
- Directions were made for the hearing and determination of Ms Gilroy's complaint against Mr Burgess. Ms Gilroy's complaint against Mr Burgess will be heard for three days commencing on 11 December 2019. Statements of facts and contentions have been filed by the parties as have statements of evidence from witnesses the parties intend to call at the hearing. The parties were directed to file and serve objections to evidence. Both parties made objections and it was determined that those objections would be decided prior to the hearing.
- The parties were able to reach agreement on all of the objections apart from one. Ms Gilroy objects to the whole of a document filed on 15 July 2019 by Mr Burgess which is in the form of an unsigned affidavit by a Mr Nicholas Holmes ('Mr Holmes' affidavit'). Ms Gilroy's objection is that Mr Holmes' affidavit is irrelevant, scandalous and hearsay.
- The question for my determination is whether or not and I should admit into evidence Mr Holmes' affidavit. In making this determination, I have assumed that it was Mr Burgess' intention that Mr Holmes' affidavit would be filed and served in a form that meets the requirements of r 52 of the Industrial Relations (Tribunals) Rules 2011. It seems to me that Ms Gilroy has approached her objection to Mr Holmes' affidavit by making the same assumption.
The parties' contentions about the claims of sexual harassment
- Ms Gilroy alleges that between 14 June 2017 and 30 June 2017, Mr Burgess made particular comments to her and sent her text messages and contends that conduct:
- was conduct of the kind referred to in s 119(b) and (c) of the Act; and
- was conduct engaged in with the intention of offending, humiliating or intimidating her within the meaning of s 119(e) of the Act and, or the alternative, was done in circumstances where a reasonable person would have anticipated the possibility she would have been offended, humiliated or intimidated by the conduct within the meaning of s 119(f) of the Act.
- Mr Burgess alleges that soon after he met Ms Gilroy in early September 2016, they commenced a consensual sexual relationship. Mr Burgess expressly denies some of the particular allegations made by Ms Gilroy and otherwise denies that he sexually harassed her.
Mr Holmes' affidavit
- In Mr Holmes' affidavit, he relevantly states that:
- he worked on the Project to enforce site health and safety procedures;
- he was not regularly required to interact with Ms Gilroy or Mr Burgess but that he would, from time to time, be required to ensure their work procedures were complying with site safety operations and recalls having interactions with each of them about work or safety related issues; and
- he only knew of Ms Gilroy through his interactions with her on-site.
- In paragraphs 8 and 10 of his affidavit, Mr Holmes refers to two occasions where Ms Gilroy made comments to him which include comments that could reasonably be described as comments of a personal, sexual nature.
- In paragraph 9 of Mr Holmes' affidavit, he describes comments made by Ms Gilroy to him which, while of a personal nature, were not of a sexual nature.
Ms Gilroy's submissions about the objection
- Ms Gilroy submits that:
- the three occasions Mr Holmes refers to in paragraphs 8, 9 and 10 of his affidavit did not involve the participation of Mr Burgess;
- Mr Burgess' written submission, that the evidence in paragraphs 8, 9 and 10 of Mr Holmes' affidavit goes to the credit of Ms Gilroy, should not be accepted because the evidence does not tend to prove a fact in issue or a fact relevant to a fact in issue because they do not involve Mr Burgess, they are non-specific in relation to time and are remote from the claims made by Ms Gilroy against Mr Burgess;
- the evidence in paragraphs 8, 9 and 10 of Mr Holmes' affidavit is scandalous in that one of the paragraphs implies criminal conduct, and otherwise the subject matter is so remote from the issues to be determined by the Commission as to be oppressive; and
- that evidence brings up matters that are deeply personal and embarrassing which is inconsistent with a purpose of the Act, namely, for a person to make a complaint about sexual harassment.
Mr Burgess' submissions about the objection
- Mr Burgess submits that the matters referred to in paragraphs 8, 9 and 10 of Mr Holmes' affidavit are directly relevant because the Commission will be required to determine whether Ms Gilroy took offence to the comments or actions of Mr Burgess or whether a reasonable person would have anticipated the possibility that Ms Gilroy would have been offended. It was submitted that Ms Gilroy's conduct, as to what acceptable language, is directly relevant to the question of whether she was in fact offended by the alleged conduct of Mr Burgess, even if, as is asserted by Mr Burgess in his contentions, they were in a consensual sexual relationship.
- Mr Burgess further submits that Mr Holmes' evidence cannot be scandalous because sexual harassment claims, by their nature, are scandalous.
- In reply, Ms Gilroy submitted that Mr Holmes' evidence, as referred to above, is too remote from the conduct she alleges against Mr Burgess and, as a consequence, it has no utility in determining whether a reasonable person would anticipate that Ms Gilroy would be offended, humiliated or intimidated by Mr Burgess' alleged conduct.
- Pursuant to s 208(1) of the Act, the Commission, in exercising the jurisdiction conferred upon it under the Act, is not bound by the rules of evidence.
- However, even though the Commission is not bound by the rules of evidence, the Commission must act judicially and afford the parties procedural fairness. In this respect, the rules of evidence are a method of enquiry best calculated to prevent error and elicit truth and, as such, the rules of evidence should only be departed from in the clearest of circumstances and where the interests of justice require it to be done.
- The question is whether paragraphs 8, 9 and 10 of Mr Holmes' affidavit are relevant to an issue between the parties as determined by the statements of facts and contentions. That is, could Mr Holmes' evidence rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding?
- Section 119 of the Act ('Meaning of sexual harassment ') provides:
Sexual harassment happens if a person—
- (a)subjects another person to an unsolicited act of physical intimacy; or
- (b)makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or
- (c)makes a remark with sexual connotations relating to the other person; or
- (d)engages in any other unwelcome conduct of a sexual nature in relation to the other person;
and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—
- (e)with the intention of offending, humiliating or intimidating the other person; or
- (f)in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
Examples for paragraph (a)—
• physical contact such as patting, pinching or touching in a sexual way
• unnecessary familiarity such as deliberately brushing against a person
Example for paragraph (b)—
Examples for paragraph (c)—
• unwelcome and uncalled for remarks or insinuations about a person’s sex or private life
• suggestive comments about a person’s appearance or body
Examples for paragraph (d)—
• offensive telephone calls
• indecent exposure
- Section 120 of the Act sets out a non-exhaustive, indicative list of the circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. Those circumstances include the sex, age, race or impairment of the other person, the relationship between the other person and the person engaging in the conduct and any other circumstance of the other person.
- Section 120 of the Act adds a subjective element to the objective test found in s 119(f). The test is whether a reasonable person, considering the particular circumstances of the complainant, would anticipate the possibility that the complainant would be offended, humiliated or intimidated. Section 119(f) therefore requires a consideration of what an independent and reasonable third party would have thought the complainant could feel given the overall context. In this regard, evidence of the conduct of a complainant, including conduct separate to the incidents the subject of the complaint, has been led in proceedings concerning the cognate provision in s 28A of the Sex Discrimination Act 1984 .
- In paragraph 10 of Ms Gilroy's statement of facts and contentions, she contends that Mr Burgess' alleged conduct, as she particularised in paragraph 9, was engaged in to offend, humiliate or intimidate her or was engaged in circumstances where a reasonable person would have anticipated that his alleged conduct or his alleged remarks would offend, humiliate or intimidate her.
- In the last paragraph on page 2 of Mr Burgess' statement of facts and contentions filed on 11 March 2019, he responds to that contention. His response is twofold. First, Mr Burgess denies he ever intended to or did offend, humiliate or intimidate Ms Gilroy. Secondly, Mr Burgess 'asserts' that Ms Gilroy is lying about how his contact with her impacted her.
- It seems to me that by Mr Burgess' response to paragraph 10 of Ms Gilroy's statement of facts and contentions, broadly and crudely expressed as it is, he has put in issue the question of whether, by his contact with Ms Gilroy, his conduct was done in circumstances where a reasonable person would have anticipated the possibility Ms Gilroy would be offended, humiliated or intimidated by the conduct. To that extent, the evidence in paragraphs 8, 9 and 10 of Mr Holmes' affidavit is relevant because it could rationally affect, directly or indirectly, that question as it could be evidence of a relevant circumstance.
- For these reasons, I dismiss Ms Gilroy's objection to Mr Holmes' affidavit.
Deanne Maree King v Workers' Compensation Regulator  QIRC 134,  (Vice President O'Connor).
Goldsmith v Sandilands  HCA 31; (2002) 76 ALJR 1024,  (Gleeson CJ).
Whittle & Hughes v Paulette & Specific Pools  QADT 5, 10 (Member Atkinson).
Smith v Hehir and Financial Advisors Australia Pty Ltd  QADT 11, 31 (Member Tahmindjis).
Horman v Distribution Group Ltd  FMCA 52, - (Raphael FM).
- Published Case Name:
Sherie Gilroy v Trent Burgess
- Shortened Case Name:
Gilroy v Burgess
 QIRC 185
04 Dec 2019