Parker v Two Champions Pty Ltd
[2018] QCAT 13
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- Unreported Judgment
- Parker v Two Champions Pty Ltd[2018] QCAT 13
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Parker v Two Champions Pty Ltd[2018] QCAT 13
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: |
|
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
- [1]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.
- [2]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).
- [3]On 24 August 2016, Ms Parker required the Commission to refer her complaint to the Tribunal.
- [4]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.
- [5]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.
- [6]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 a decision of the tribunal in the proceeding; or
- (b)the person's interests may be affected by the proceeding; or
- (c)for another reason, it is desirable that the person be joined as a party to the proceeding.
- (2)The tribunal may make an order under subsection (1) on the application of a person or on its own initiative.
- [8]Section 40 of the QCAT Act specifies that the parties to a review proceeding include a person joined under section 42.
- [9]It is also necessary to make reference to s 177 of the ADA, which provides:
Tribunal may join a person as a party
- (1)The tribunal may join a person as a party to a proceeding whether or not the person was a complainant for, or respondent to, the complaint to which the proceeding relates.
- (2)This section does not limit a provision of the relevant tribunal Act about joining a party to a proceeding.
- [10]This section was introduced into the ADA in its present form in 2009. The explanatory notes provided:
The inclusion of a new section 177 is to clarify that QCAT may join a third party to a proceeding where the person is not a complainant or respondent to the complaint to which the proceeding relates. Former decisions of the ADT have narrowly interpreted the former section 177 thus restricting the use of the section 177 to join third parties to a proceeding. The relevant decisions include Lundbergs v QSuper [2003] QADT 8, Mickelo v Kotlaro & Cellcom Pty Ltd t/a Melbourne Hotel [2004] QADT 31, H v T [2006] QADT 20 and Black and White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77.
- [11]In Black and White (Quick Service) Taxis Ltd v Sailor & Anor, referred to in the explanatory notes, Jones J stated:[1]
The terms of the Tribunal’s powers are widely expressed:-
“177. Tribunal may join a person as a party
The Tribunal may join a person as a party to a proceeding by giving the person reasonable notice.”
Despite the width of the power as expressed, its use has been constrained by the perceived limited nature of the Tribunal’s statutory jurisdiction. A complaint comes to the Tribunal through a process ordained by the Act which requires:-
- a complaint in writing complying with s 136 made to the Commission in one year of the contravention (ss 136 and 137);
- a decision by the Commission whether to accept or reject the complaint (s 141);
- the Commission is to investigate the complaint (ss 155, 156);
- if the Commissioner believes that a complaint may be resolved by conciliation, conciliation must be undertaken (s 158);
- if the complaint is not or not likely to be resolved by conciliation the complainant is to be so advised (s 165);
- the complainant may elect to require a referral of the complaint to the Tribunal (s 166).
…
A contravention by a particular person, whether personally, or vicariously pursuant to s 133 of the Act, is to be considered at the investigative stage by the Commission. Being seized of the issue at this stage would allow consideration of whether the person alleged to be vicariously liable, had a defence pursuant to s 133(2). Only if appropriate would the complaint be referred to the Tribunal and, if so, it may be as a separate contravention. Even if the complainant now instituted a complaint against the owners and it was referred as a separate complaint it would become a matter for the Tribunal whether to deal with the referred complaints jointly pursuant to s 179.
- [12]The explanatory notes, and the plain language of s 177 in its present form, make clear that Parliament intended to ameliorate the effect of a body of previous decisions and overcome the obstacles to joinder that those decisions had presented.
Discussion
Ambresh Jhanbia
- [13]Ms Parker has sought to join Mr Ambresh Jhanbia on the basis that he was the manager of the Nando’s franchises at Chermside and Strathpine, and claims that he personally contravened a number of sections of the ADA.
- [14]Ms Parker’s explanation for Mr Ambresh Jhanbia not initially being named as a respondent was confusion as to his identity, in that he had previously told her that he was the owner of both franchises. She incorrectly believed he was one of the other respondents, presumably Mr Sirichand Jhanbia. Mr Ambresh Jhanbia was served with a copy of the application for joinder by letter to his legal representatives dated 15 November 2017. He has not opposed the application.
- [15]The claims which are sought to be made against Mr Ambresh Jhanbia fall within the same factual and legal matrix as the claims which are made against the other respondents. I am satisfied that it is desirable that he be joined as a party to the proceeding for the purposes of s 42(1)(c). I am satisfied that it is appropriate to exercise my discretion to join him, and I so order.
Nando’s Australia Pty Ltd
- [16]Ms Parker has sought to join Nando’s Australia Pty Ltd on the basis that:
- a)there was a relationship of agency between the company and its franchisees Two Champions Pty Ltd and Two Champions (Strathpine) Pty Ltd; and
- b)Nando’s Australia Pty Ltd also directly discriminated against her.
- a)
- [17]In this regard, s 133 of the ADA provides:
Vicarious liability
- (1)If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
- (2)It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.
- [18]The parties have expended considerable effort in making written submissions on the merits of the agency and direct discrimination claims. In my view, it is not appropriate to make a final determination on these issues on what is an interlocutory application. It may have assisted the parties had these issues been ventilated at the investigative stage before the Commission. However, for the reasons set out above, this is not an obstacle to joinder.
- [19]Be that as it may, there are other obstacles facing the interlocutory application. In Bartlett v Body Corporate for Beaches Surfers Paradise, the Tribunal recognised that a delay in bringing the application for joinder is a ground for refusing to exercise the s 42 discretion.[2] In the present matter, Ms Parker only sought to join Nando’s Australia Pty Ltd on 5 September 2017, approximately 12 months after the referral to the Tribunal and 18 months after she made the complaint to the Commission. The explanation for the delay advanced by Ms Parker relates to advice she was purportedly given at a compulsory conference, which is inadmissible under s 74 of the QCAT Act.
- [20]Another recognised reason for refusing a joinder is that the addition of parties would considerably add to the complexity of proceedings.[3] The joining of the Nando’s Australia Pty Ltd as a respondent will raise further complex issues that will undoubtedly result in an increase in hearing time. The complexity of the issues to be determined includes the hearing of additional evidence relevant to whether Two Champions Pty Ltd and Two Champions (Strathpine) Pty Ltd acted as the company’s agents.
- [21]In Just GI P/L v Pig Improvement Co Aust P/L,[4] the Court of Appeal observed that the discretion to join a party to a proceeding requires a ‘balancing exercise’ of the advantages and disadvantages in considering whether the application to join should be allowed. Williams JA stated:
The question is one on which judicial minds might well differ. There are clearly advantages and disadvantages in joining or not joining the third parties. A balancing exercise is called for. It is difficult at a precise moment in time to give an immutable answer to such a question…[5]
- [22]The Tribunal must, in conducting a proceeding, have regard to the objectives under s 3 of the QCAT Act to, amongst others, ‘deal with matters in a way that is accessible, fair, just, economical, informal and quick’. I am not satisfied that the Tribunal’s objectives will be met should Nando’s Australia Pty Ltd be joined as a respondent. I am not satisfied that it is an appropriate exercise of discretion to join Nando’s Australia Pty Ltd as a party to the proceeding having regard to Ms Parker’s delay in seeking joinder, and the increase in hearing time and costs to the other respondents due to the complexity of the issues to be determined by the Tribunal. The appropriate order is that the balance of the application for joinder be dismissed.