Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2022
  4. Gorgievski v Gold Coast City Council - [2022] QCAT 365

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Gorgievski v Gold Coast City Council[2022] QCAT 365

Gorgievski v Gold Coast City Council[2022] QCAT 365

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gorgievski v Gold Coast City Council & Anor [2022] QCAT 365

PARTIES:

Alexandar Gorgievski

(applicant)

v

Gold Coast city Council

(first respondent)

James frederick Harris

(second respondent)

APPLICATION NO/S:

ADL051-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

25 October 2022

HEARING DATE:

22 July 2021

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Fitzpatrick

ORDERS:

  1. The application is dismissed.
  2. The respondents have liberty to apply in relation to their costs of the proceeding.
  3. Any submissions in relation to costs by the respondents must be filed and given to the applicant by 4:00pm on 7 November 2022.
  4. Any submissions in response must be filed by the applicant and given to the respondents by 4:00pm on 21 November 2021.
  5. Any application for costs of the proceeding will be determined on the papers not before 21 November 2022.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – GROUNDS OF DISCRIMINATION – SEX DISCRIMINATION – SEXUAL HARASSMENT – HOMOSEXUALITY – VICTIMISATION – where library patron alleged sexual harassment – whether conduct occurred as alleged or at all – whether conduct of a sexual nature – discrimination on ground of sexuality and sex – indirect discrimination – whether conduct was victimisation – where no discrimination was found – where Human Rights were considered

Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 8, s 9 , s 10, s 11, s 118, s 205

Human Rights Act 2019 (Qld) s 4(f), s 15, s 31, s 48

Briginshaw v Briginshaw (1938) 60 CLR 336

Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623

Momcilovic v R (2011) 245 CLR 1

Poniatowska v Hickinbotham [2009] FCA 680, [294]

Re Cram, ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140

Re Kracke v Mental Health Review Board (2009) 29 VAR 1

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

P Willoughby of counsel, instructed by Norton Rose Fullbright Australia

REASONS FOR DECISION

  1. [1]
    Mr Gorgievski was at the relevant times a patron of the Gold Coast City Council Library conducted by the first respondent Gold Coast City Council.
  2. [2]
    The second respondent James Harris was employed in the Library as a librarian.
  3. [3]
    Mr Gorgievski alleges that:
    1. (a)
      he was sexually harassed by Mr Harris on many occasions over the period January 2019 to October 2019;
    2. (b)
      he was subject to discrimination, including direct and indirect discrimination; and
    3. (c)
      he was subject to 40 instances of victimisation.
  4. [4]
    It is asserted that the Council is vicariously liable for the conduct of its employee.
  5. [5]
    The respondents have prepared a table setting out the allegations extracted from Mr Gorgievski’s statement of evidence filed 31 May 2021 (Exhibit 9).
  6. [6]
    I have largely adopted the table as a fair summary of Mr Gorgievski’s complaints, which are said to have occurred in the Library, unless otherwise noted.

Allegation

Summary Of Allegation

Sexual harassment

1

In about January 2019, Mr Harris stared into Mr Gorgievski’s eyes as he exited the supermarket at Australia Fair Shopping Centre.

2

That in about January to February 2019, Mr Harris:

  1. a)
    approached him;
  1. b)
    hovered over him;
  1. c)
    stared into his eyes;
  1. d)
    nodded at him; and
  1. e)
    walked away.

3

In about February to March 2019, Mr Harris walked past Mr Gorgievski slowly.

4

In 2019 (dates unparticularised), Mr Harris looked him in the eyes and nodded as he walked past Mr Gorgievski.

5

At an unparticularised time, Mr Harris stared at Mr Gorgievski and smiled.

6

At an unparticularised time, Mr Harris stared at Mr Gorgievski and smiled as he walked towards him.

7

At an unparticularised time, Mr Harris was frequently in the vicinity of Mr Gorgievski in the Library.

8

In Spring 2019 (dates unparticularised), Mr Harris looked at Mr Gorgievski's legs.

9

At an unparticularised time, Mr Harris stood in Mr Gorgievski’s way as he made his way to the Library exit, stared at him and nodded.

10

On 25 October 2019, Mr Harris "propositioned" Mr Gorgievski in a conversation at the Library, as follows:

JH: Hi. How are you?

AG: I’m well

JH: I see you here all the time. What are you working on?

AG: I’m very busy. I’ve got a lot of work to do.

JH: We should live a better life.

AG: What do you mean?

JH: We should spend some time together outside of the Library.

AG: I’m not interested.

JH: Okay, I’ll see you later.

Discrimination

1 (Indirect)

A term was imposed that the word of a Library employee is more credible than that of a Library patron.

2

Council manufactured "the infatuation scenario" and asserted that Mr Gorgievski had misinterpreted Mr Harris’ conduct, based on the fact that Mr Gorgievski is gay, to provide a basis for:

  • denying the allegations;
  • failing to follow the Council’s complaints process and RTI process;

and treating him less favourably than people who do not identify as gay.

3

Council treated Mr Gorgievski less favourably than people who do not identify as gay and discriminated against him in the assessment of his complaint, did not take the complaint seriously or follow policies and procedures in assessing the complaint. The Council used Mr Gorgievski’s homosexuality as an excuse and justification for their decisions.

4

Council failed to take any action in Mr Gorgievski’s favour or investigate his complaint.

5

Council treated Mr Gorgievski less favourably than Mr Harris and breached Council’s Complaints (Administrative Actions) Policy and Procedures by not following them.

6

Mr Harris treated Mr Gorgievski less favourably by claiming that he is not gay and by making false and misleading statements to Council that he had been harassed at the Library, based on the likelihood of it being true merely because Mr Gorgievski is gay and Mr Harris has tried to convince everyone that he is not gay.

7

Mr Harris treated Mr Gorgievski less favourably by claiming that he is not gay and by making false and misleading statements to the Magistrates Court in respect of the Peace and Good Behaviour Order application.

8

Mr Harris treated Mr Gorgievski less favourably by claiming that he is not gay and by making false and misleading statements to the Magistrates Court in respect of the stalking charge.

9 (Indirect)

Greg Worrell imposed a term upon Mr Gorgievski that he must be a Library employee to be regarded as credible in his complaint and to have his complaint taken seriously.

10

Shannon Richards treated Mr Gorgievski less favourably than people who do not identify as gay, by assuming that he was guilty of harassing Mr Harris because he is gay and Mr Harris said that he is not gay, and by stating “I would be loathe to dedicate the team to a more detailed investigation, given what we know about the complainant.”

11

Brenda Webber treated Mr Gorgievski less favourably than people who do not identify as gay, by failing to process his RTI application and by making an allegedly homophobic comment: “He’s not gay. You are!”.

12

Paula Perry treated Mr Gorgievski less favourably than people who do not identify as gay, when she dismissed his complaint and with homophobic derision likened Mr Gorgievski to a woman by saying: “He undressed me with his eyes”.

13

Shannon Richards treated Mr Gorgievski less favourably than people who do not identify as gay, when she perpetuated the homophobic derision above.

14

Shannon Richards treated Mr Gorgievski less favourably than Mr Harris, when she refused to review the investigation into his complaint by assuming he had harassed Mr Harris because he is gay; failed to interview him; did not allow him to submit further evidence and CCTV footage and relied on “available evidence” knowing the CCTV footage would no longer be available.

15

Council treated Mr Gorgievski less favourably than Mr Harris, when it failed to place Mr Harris on administrative leave following the complaint on 15 September 2020, when the QHRC found there were reasonable grounds to find that Mr Harris harassed a Library patron. Whereas Council acted on Mr Harris complaint to ban him from libraries for 6 months.

Victimisation

1

4

On 25 October 2019, Council implemented a 24 hour ban on Mr Gorgievski attending the Library.

2

On 25 October 2019, Amer Kakish forced the Applicant to leave the Library.

3

At an unparticularized time Mr Harris made false and misleading statements against Mr Gorgievski to Council. On 25 October 2019, Mr Harris implemented a 24 hour ban on the Applicant attending the Library.

5

On 29 October 2019, Greg Worrell ordered Mr Gorgievski to leave the Library.

6

On 29 October 2019, Amer Kakish forced the Applicant to leave the Library. 

7

At an unparticularized time Greg Worrell coerced the Applicant into withdrawing his complaint by stating that if he did not do so he would be banned from the Library.

8

At an unparticularized time, Greg Worrell implemented a 24 hour ban on the Applicant attending the Library.

9

Council turned Mr Gorgievski’s complaints against him, manufactured evidence and conspired to cover up his complaint.

10

Michelle Fleming did not action his complaint when directed to do so by Paula Perry.

11

Michelle Fleming did not ask the Applicant if he withdrew his complaint of his own free will.

12

Mr Harris implemented a 6 month ban from the City Libraries.

13

Council refused to review its decision about the 6 month ban from the Libraries.

14

Council withheld CCTV footage from the Library.

15

Paula Perry failed to adhere to the Council's Complaints (Administrative Action) Policy and Procedures.

16

Shannon Richards approved the decision not to undertake a formal investigation.

17

Shannon Richards failed to refer the ban decision to a compliance officer for review.

18

37

Council failed to formally investigate Mr Gorgievski’s complaint.

19

John Anderson misled him when he stated, "we have assessed the complaint and taken appropriate action".

20

John Anderson misled him when he stated, "following investigation we consider the matter closed".

21

23

24

34

Brenda Webber delayed and refused access to RTI documents.

22

Dale Dickson advised staff to cover up the Applicant's complaint and specifically advised Brenda Webber to delay and refuse the Applicant's RTI application.

25

Council redacted documents with intent to conceal Mr Gorgievski’s options to pursue his complaint.

26

Council conspired to manufacture evidence in support of Mr Harris’ application for a Peace and Good Behaviour Order.

27

Mr Harris has given false statements to the Magistrates Court in support of the application for the Peace and Good Behaviour Order and to the Police in support of a charge of stalking.

28

Mr Harris sought the Peace and Good Behaviour Order for a period of 1O years.

29

Mr Harris used the threat of a stalking charge to coerce Mr Gorgievski.

30

Mr Harris made a complaint of stalking to the police in order to secure bail conditions similar to a Peace and Good Behaviour Order.

31

Mr Harris used the Peace and Good Behaviour Order and the stalking charge to manipulate the Queensland Ombudsman into not investigating his complaint.

32

Council and Mr Harris filed submissions with the QHRC using false and misleading statements to have the complaint lapsed.

33

Council used the Peace and Good Behaviour Order to excuse Mr Harris from the compulsory conference in the proceeding.

35

36

Graeme Banks fabricated evidence and gave false testimony in support of the Peace and Good Behaviour Order.

38

Council refused to discipline Mr Harris and place him on administrative leave.

39

40

The request for additional security at the hearing was made by the Respondents' legal representatives being an abuse of process and an attempt to influence the Tribunal.

Onus of proof

  1. [7]
    Mr Gorgievski carries the burden of proving on the balance of probabilities that Mr Harris contravened the Anti-Discrimination Act 1991 (Qld) (AD Act), which prohibits sexual harassment,[1] discrimination on the basis of an attribute in certain areas of activity,[2] and victimisation.[3]
  2. [8]
    Whether the allegations have been proved to the reasonable satisfaction of the Tribunal depends on the seriousness of the allegations, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.[4]

Sexual Harassment

Issues to be determined

  1. [9]
    For Mr Gorgievski to succeed in his claim of sexual harassment I must be satisfied that:
    1. (a)
      one or more of the sexual harassment allegations 1 to 10 set out in the table occurred as alleged;
    2. (b)
      the conduct was an unsolicited demand for sexual favours or otherwise unwelcome conduct of a sexual nature; and
    3. (c)
      Mr Harris intended to offend, humiliate or intimidate Mr Gorgievski or a reasonable person would have anticipated that the Mr Gorgievski would be offended, humiliated or intimidated.

Findings

  1. [10]
    I do not consider the incidents the subject of the complaint occurred as alleged, or to the extent that they are acknowledged by Mr Harris to have occurred, they do not have any characteristics of a sexual nature.
  2. [11]
    I accept the evidence of Mr Harris who I find to be a credible and truthful witness. His demeanour when giving evidence was calm and thoughtful. Mr Harris answered all matters put to him in an open and straightforward way and in many instances had supporting evidence, including video evidence of his version of events. Mr Harris was not shaken in cross-examination in relation to his version of events.
  3. [12]
    Mr Harris has made sensible concessions in his evidence. Mr Harris acknowledges that he observed Mr Gorgievski on one occasion at Australia Fair Shopping Centre and he observed him in the Council Library. He acknowledges that he walked past Mr Gorgievski from time to time in the course of his work. He acknowledges nodding at Mr Gorgievski on occasion by way of courteous greeting. Otherwise, the allegations are denied. Mr Harris denies the alleged proposition as claimed by Mr Gorgievski. He gives a different account, set out later in this decision, which I accept.
  4. [13]
    Mr Harris denies that any of his conduct had any sexual character or intent.
  5. [14]
    Mr Harris’ evidence as to his interactions with Mr Gorgievski on the Library floor was confirmed by the observations of Mr Worrell, to whom he reported, and who worked in the Library.
  6. [15]
    I find that Mr Gorgievski was simply in the same place as Mr Harris and that meant some ordinary level of eye contact, passing by each other or recognition of each other. On the basis of Mr Harris’ evidence, I find that there was nothing of a sexual nature in any of Mr Harris’ contact with Mr Gorgievski.
  7. [16]
    I further find on the basis of Mr Harris evidence as to the level of contact between him and Mr Gorgievski that it is not possible to infer that Mr Harris intended to offend, humiliate or intimidate Mr Gorgievski nor that a reasonable person would be offended, humiliated or intimidated by that conduct.
  8. [17]
    Mr Gorgievski’s evidence at the hearing is that staring, nodding and smiling are all acts understood by a gay person to be acts of sexual interest from the other person. I do not accept that evidence in the absence of evidence of some lasciviousness or conduct one could objectively say was sexual.[5] There is no evidence of any such conduct. The acts complained about are the acts of ordinary, civil interaction between people.
  9. [18]
    I do not accept Mr Gorgievski’s evidence in relation to the matters he alleges, because I do not find him a credible witness.  Mr Gorgievski denied conduct of which there was clear video evidence and was reluctant to answer questions in a straightforward way.[6] I also consider that Mr Gorgievski’s conduct towards Mr Harris was so unreasonable, harmful and disproportionate that I cannot accept Mr Gorgievski’s perception of Mr Harris’ conduct as credible.
  10. [19]
    Mr Harris gave evidence in relation to Mr Gorgievski’s conduct towards him which resulted in Mr Harris obtaining a Peace and Good Behaviour Order directed to Mr Gorgievski, and for a complaint of stalking to be made. Mr Harris also made work health and safety reports about his interactions with Mr Gorgievski.
  11. [20]
    Video footage was played during the hearing showing Mr Gorgievski, on 3 November 2019, approaching Mr Harris in his car stopped at traffic lights at Biggera Waters. Mr Gorgievski can be seen knocking on the driver’s window. Mr Harris’ partner and children were in the car at the time. Mr Gorgievski was heard saying:

I need to talk to you about the Library

Do you want me out of your life; and

I am going to get you fired.

  1. [21]
    I consider that conduct to be frightening and unreasonable and it goes to Mr Gorgievski’s credibility as a witness.
  2. [22]
    I accept Mr Harris evidence in chief as to other unreasonable conduct by Mr Gorgievski and find that: [7]
    1. (a)
      On 25 October 2019, Mr Gorgievski approached Mr Harris in the Library and said:

You and I should spend some time together.

Mr Harris responded:

I am very busy.

  1. (b)
    Shortly afterwards Mr Gorgievski approached Mr Harris at the Information Desk and requested that they meet in private. He asked Mr Harris questions about his age and whether he likes boys. He said three to four times: ‘I know you like boys.’ Mr Harris terminated the conversation. He later approached the Information Desk where Mr Harris was standing and demanded a private meeting.  The interaction was recorded by the Library security guard.[8] The interaction included Mr Gorgievski saying:

And you need to keep your dick in your pants.

  1. (c)
    After being escorted out by the security guards and banned from the Library for 24 hours Mr Gorgievski said to Mr Harris:

You can say goodbye to your second in charge job.  I know why you are not the head librarian.  You fucked up bad.

  1. (d)
    Mr Gorgievski made numerous attempts to enter the Library to make contact with Mr Harris, including on 5 November 2019 when Mr Gorgievski was prevented by security from entering the Library. Mr Gorgievski made other attempts to enter the Library on 25 November 2019 and 20 December 2019.
  2. (e)
    On 5 November 2019 Mr Gorgievski rang Mr Harris at work, giving a false name to staff. He asked Mr Harris to come outside the Library and used the words:

Goodbye husband

  1. (f)
    On 20 November 2019 Mr Gorgievski followed Mr Harris in his car, blowing his horn repeatedly. Mr Harris drove to the Southport police station with Mr Gorgievski following him honking his horn. When Mr Harris stopped at the lights Mr Gorgievski got out of his car and banged on the driver’s window yelling at him to pull over. He said the words:

I want to talk to you

Do you want to be alone forever? Is that what you want?

  1. (g)
    At the police station Mr Gorgievski remained outside. It was necessary for police to serve Mr Gorgievski with a complaint and summons and to direct him to leave.
  2. (h)
    At the first hearing of the Peace and Good Behaviour matter Mr Gorgievski engaged in further intimidatory conduct, staring and making faces at Mr Harris.  This conduct was also observed by Mr Taylor, Executive Coordinator, City Libraries.[9]
  1. [23]
    Other witnesses at the hearing gave evidence as to their interactions with Mr Gorgievski, including Mr Worrell.[10] I accept Mr Worrell as a witness of credit. His evidence was given in a straightforward way. He was not shaken in cross-examination in relation to his version of events. The interaction with Mr Worrell which I consider to be threatening and unnecessarily crude, and which goes to Mr Gorgievski’s credibility occurred on 29 October 2020. The interaction was recorded by security body camera shown in the hearing and is in evidence.[11] The incident involved Mr Gorgievski being asked to leave the Library. In the course of the conversation he said:

Are you a faggot as well because you seem like one.

…

bye Felicia, you fucked up faggot yourself.  Disgusting.

  1. [24]
    Mr Graeme Banks, Security Advisor, employed by the Gold Coast City Council gave evidence[12], supported by an audio recording of Mr Gorgievski speaking to a Council employee on 10 February 2020 and saying:

You fucking fucked up bitch Brenda, you fucking idiot

  1. [25]
    Ms Webber, the affected employee confirms the conversation in her affidavit tendered in evidence.[13] The affidavit attaches emails sent to her by Mr Gorgievski threatening her with a campaign to have her dismissed for corruption, accusing her of being: ‘disgraceful, self-serving, corrupt, ignorant and unprofessional public servants’.  She was not required for cross-examination.
  2. [26]
    In his closing submissions, Mr Gorgievski said that his dealings with the Council, Mr Worrell and Ms Webber were the result of mental anguish and anxiety and depression manifested in a mood disorder and bad behaviour, caused by Mr Harris’ alleged conduct. Mr Gorgievski led no medical evidence as to his mental health. When cross examined in relation to these matters Mr Gorgievski did not say that his conduct was the result of a medical condition.
  3. [27]
    I find that the conduct alleged to have been engaged in by Mr Gorgievski in fact occurred. I find that his conduct was so unreasonable, harmful and disproportionate that he is not a credible witness in relation to any assertion of fact which differs from the evidence of Mr Harris and the first respondents’ witnesses.
  4. [28]
    I do not accept the closing submissions made by Mr Gorgievski. Because I have not accepted that the incidents alleged by Mr Gorgievski either occurred or had any sexual characteristics, I am not prepared to draw the inferences Mr Gorgievski invites me to make, to find that sexual harassment occurred.
  5. [29]
    Mr Gorgievski’s closing submissions are replete with speculation and irrelevancy. For example, he has devoted six paragraphs to suggesting that Mr Harris dyed his hair in order to “manipulate the Member to deliberately appear younger in order to prevent it being determined that he had unlawfully sexually harassed me for 9 months…”
  6. [30]
    I find that no sexual harassment as alleged by Mr Gorgievski has occurred.

Order

  1. [31]
    The complaint of sexual harassment is dismissed.

Discrimination

  1. [32]
    Mr Gorgievski alleges that he was subjected to indirect and direct discrimination in the handling of his complaint of sexual harassment against Mr Harris.
  2. [33]
    The Table set out earlier summarises the allegations.

Issues

  1. [34]
    Mr Gorgievski describes himself as gay. In this decision that term is taken to mean homosexual. It is accepted that Mr Gorgievski is a gay man, and he complains that he has been discriminated against because of an attribute,[14] which is his sexuality as a gay man. In his closing submissions Mr Gorgievski asserts that he was also discriminated against on the basis of his sex, being a man. That assertion is also made to the Queensland Human Rights Commission.
  2. [35]
    Mr Gorgievski submits that discrimination occurred in the area of goods and services (provided by a Local Government), under s 46 of the AD Act. His Complaint to the Queensland Human Rights Commission was accepted as being sex discrimination and sexuality discrimination in the area of State laws and programs.
  3. [36]
    Mr Gorgievski must establish that:
    1. (a)
      the incidents of discrimination occurred as alleged;
    2. (b)
      in the case of direct discrimination, he has been treated less favourably than another person who does not have the attribute of sexuality as a gay man, is or would be treated, in circumstances which are the same or not materially different[15];

and

  1. (c)
    in the case of indirect discrimination, the first respondent has imposed a term with which Mr Gorgievski, having the attribute of sexuality as a gay man, cannot comply; and which a higher proportion of persons without the attribute comply or able to comply; and the term is not reasonable[16]. The respondent bears the onus of proving that any such term is reasonable[17].
  1. [37]
    The same analysis is required in relation to the attributed of sex.

Direct Discrimination

What course of events led to the “treatment” experienced by Mr Gorgievski?

  1. [38]
    In his closing submissions Mr Gorgievski suggests that he was treated unfavourably by being banned from “all of the Council libraries for 6 months”. That allegation does not appear in his complaint, but it is part of the matrix of facts surrounding the matter.
  2. [39]
    The treatment forming the allegations against the respondents relates to the way in which the first respondent dealt with Mr Gorgievski’s complaint against Mr Harris.
  3. [40]
    The written complaint was lodged with the first respondent on 18 September 2019. The complaint is a seven-page handwritten document setting out Mr Gorgievski’s perception that whilst he was a patron in the Library, certain interactions occurred between he and Mr Harris over a 9 month period, including principally that Mr Harris caught his eye, nodded at him and walked past him on a number of occasions and that these were the acts of a “sexual predator”.[18]
  4. [41]
    Evidence as to the course of events in dealing with Mr Gorgievski’s complaint is set out in the affidavits of the personnel who dealt with the complaint. Each affidavit attaches relevant documents and correspondence in support of the steps taken by them in dealing with Mr Gorgievski’s complaint. I accept the evidence of the first respondent’s witnesses and find that the course of events in dealing with Mr Gorgievski’s complaint occurred as they have stated in their evidence.
  5. [42]
    Mr Anderson, Co-Ordinator (Complaints and Projects) did not give evidence, but his affidavit was tendered as an exhibit.[19] Even though Mr Anderson was not available for cross examination I have nevertheless relied upon it because it sets out the history of the matter and attaches supporting documents which are entirely consistent with the matters set out in the affidavit. Mr Anderson says that the complaint was raised with him but that Mr Gorgievski withdrew his complaint on 2 October 2019. Mr Gorgievski then advised on 25 October 2019 that he would like to proceed. On 4 November 2019 he advised that he would withdraw the complaint. On 5 November 2019 Mr Gorgievski advised that he wished to proceed and add more information.
  6. [43]
    Thereafter the complaint was referred to the People and Culture section of the Council. Mr Gorgievski was advised on 21 November 2019 that appropriate action had been taken and the matter was closed. No formal investigation occurred at this stage.
  7. [44]
    Mr Gorgievski was dissatisfied with the outcome. An administrative action complaint was opened. A review of the earlier decision was undertaken.
  8. [45]
    Mr Gorgievski also complained about being asked to leave the Library on 29 October 2019. An administrative action complaint was made and referred for investigation.
  9. [46]
    Mr Gorgievski was advised by letter dated 8 November 2019[20] from Ms Buker, Manager City Libraries that he was not to enter any City Library for a period of 6 months. The decision was made pursuant to Section 17.1(c) of Local Law No 4 (Libraries) 2008:
  1. (1)
    An authorised person may direct a person to leave a Library premises if the person –

… (c) in the opinion of the authorised person, such a direction is necessary for the care, consideration, safety; or well-being of a patron of the Library or for the protection of the Library premises, Library resources or Library staff.

…

  1. [47]
    The reasons given for the decision were:
    1. (a)
      Conduct on 29 October 2019 making inappropriate approaches and directing verbal abuse to Library staff, including seeking information about marital and relationship status of the Library staff member, telling him to “keep his dick in his pants” and calling another Library staff member a “faggot”.
    2. (b)
      On 30 October 2019 a written complaint was received from a customer about Mr Gorgievski’s inappropriate language directed towards that customer;
    3. (c)
      On 3 November 2019 Mr Gorgievski approached and knocked on the window of a vehicle occupied by a member of the City Libraries Southport and two children whilst stationary in traffic, demanding to talk in an intimidating way.
    4. (d)
      Four earlier incidents involving paying a child to use its computer session, calling a customer a “stupid bitch”, and inappropriate comments to staff and security over computer access and saying to a staff member: ‘You just get paid to sit on your butt’
  2. [48]
    Ms Fleming, Senior Business Partner, People and Culture conducted a review of Mr Gorgievski’s sexual harassment complaint between 6 November 2019 and 20 December 2019.
  3. [49]
    The review included:
    1. (a)
      reviewing Mr Gorgievski’s handwritten complaint;
    2. (b)
      reviewing 5 emails and a file note from Mr Anderson regarding his discussions with Mr Gorgievski;
    3. (c)
      reviewing 5 HandS reports (work, health and safety incident reports in relation to Mr Gorgievski’s contact with Mr Harris, including the 3 November 2019 incident, his behaviour at Court and abuse of Mr Worrell);
    4. (d)
      speaking to Mr Tayor about his knowledge of Mr Gorgievski’s conduct on 3 November 2019 and later in court on 5 December 2019;
    5. (e)
      speaking to Mr Worrell, who confirmed he had never observed Mr Harris show any unusual attention to Mr Gorgievski other than the usual acknowledgments required in a customer service role;
    6. (f)
      receiving a recent written complaint about Mr Gogievski from a patron of the Library; and
    7. (g)
      determining that CCTV at the Library was not available because it is refreshed every few days and in any event was too poor a quality to discern facial expression or gestures.
  4. [50]
    Ms Fleming did not interview Mr Gorgievski because he had been interviewed by Mr Anderson on a number of occasions and she had Mr Anderson’s records.
  5. [51]
    Ms Fleming recommended dismissing the complaint. She says that she thought the complaint was vexatious, because of:
    1. (a)
      Mr Gorgievski’s reported conduct towards Mr Harris, when Mr Harris refused to go into a meeting room with him;
    2. (b)
      his reported conduct towards Mr Worrell when Mr Worrell intervened to remove him from the Library;
    3. (c)
      the fact that he had withdrawn and re-lodged his complaint twice in a relatively short period, which was understood by her to be a clear signal that the complaint was not genuine but was being used for an ulterior motive;
    4. (d)
      his wished to regain access to the Library, when it had been made clear to him that he was free to use other branches of the City Libraries service;
    5. (e)
      her view that the allegations against Mr Harris were largely based on Mr Gorgievski’s assumptions and inferences as to Mr Harris’ thought processes, and not Mr Harris’ objective conduct; and
    6. (f)
      her understanding that the actual conduct and behaviour Mr Gorgievski described, when separated from his assumptions about motive, was not objectively harassing but, in her view, amounted to nothing more than acknowledgement of another person in passing (that is smiling, nodding and making eye contact).
  6. [52]
    Ms Fleming’s recommendation was accepted by Ms Richards, Chief People and Culture Officer who had overall responsibility for the matter. She formed her own views upon receipt of a briefing note from Ms Fleming and conferred with Mr Anderson to agree the terms of a response to Mr Gorgievski.
  7. [53]
    Ms Fleming’s evidence as to her support of the recommendation from Ms Richards is that:
    1. (a)
      she thought the complaint itself was emotive and poorly particularised;
    2. (b)
      Mr Gorgievski had by this time accumulated a history with Mr Harris, and Mr Gorgievski had been charged with stalking Mr Harris;
    3. (c)
      her concerns about Mr Harris’ health and safety at work in light of the concerns raised;
    4. (d)
      the enquiries made by Ms Fleming were appropriate to the circumstances, including reviewing the relevant material, speaking to appropriate personnel at the Library, and attempting to obtain CCTV (which was no longer available).
    5. (e)
      Ms Bukar, Manager City Libraries was consulted and was of the view there was no substance to the allegations against Mr Harris, and that no one had witnessed him engaging in any inappropriate conduct towards Mr Gorgievski.
  8. [54]
    On 24 December 2019 Mr Gorgievski was sent an email by Mr Anderson, advising that Council declined to investigate and would take not further action in relation to his complaints about the investigation of his allegation of sexual harassment and the decision to exclude him from council libraries for 6 months. He was told that the decision was made in accordance with section 2.2.1 of the Complaints (Administrative Actions) Policy and Procedures.[21]
  9. [55]
    Section 2.2.1 of the Complaints (Administrative Actions) Policy and Procedures[22] provides:

…

Generally, every complaint will be assessed and investigated, unless it comes within one of the following categories:

  1. It is considered by both the relevant manager and the Manager Office of the CEO Branch (or Coordinator (Complaints and Projects) to be trivial, frivolous or vexatious, i.e. lacks substance or credibility, is an abuse of the C(AA)PP or is not made in good faith.
  2. …
  3. It is made using rude or intemperate language or the complainant is physically harassing or stalking a Council officer.  These complaints may not be responded to or may be returned.
  1. [56]
    Mr Gorgievski was later given information about the Queensland Ombudsman so that he could escalate his complaint in relation to the handling of his sexual harassment complaint. Mr Anderson says that he is not aware of any action taken by the Queensland Ombudsman. There is no evidence from Mr Gorgievski in this regard.
  2. [57]
    Upon Mr Gorgievski’s request he was provided with information about obtaining documents through the Council’s right to information process (RTI).
  3. [58]
    Mr Gorgievski later complained about the right to information process and the actions of Ms Webber the Council’s RTI and Information Privacy decision maker. His complaint was referred to the legal services branch of the Council.
  4. [59]
    In March 2020 Mr Gorgievski sent a series of emails to the legal unit variously threatening legal action, dismissal of employees and alleging corrupt conduct on the part of Mr Anderson and Ms Webber.[23] In view of their content, these emails were not responded to. Otherwise, I accept that Mr Anderson courteously responded to all Mr Gorgievski’s communications.
  5. [60]
    Ms Webber gave evidence about the steps taken by her in managing Mr Gorgievski’s right to information request into the investigation of his sexual harassment complaint. Ms Webber says she was subjected to aggressive telephone calls from Mr Gorgievski. The particularly offensive conversation is set out earlier in this decision.
  6. [61]
    Ms Webber categorically denies the conversation attributed to her by Mr Gorgievski where it is alleged it was said:

AG   …Mr Harris sexually harassed me

BW   No he didn’t

AG    Yes he did. What would you know about it?

BW    He is not gay, you are!

  1. [62]
    I accept Ms Webber as a truthful witness and find that the conversation did not occur as alleged.
  2. [63]
    Ms Webber concedes that she was delayed in concluding Mr Gorgievski’s application by pressure of work. She expresses her concern at what she considered to be continuing aggressive contact from Mr Gorgievski. Eventually his request was dealt with by the Office of the Information Commissioner and redacted documents were sent to Mr Gorgievsky.
  3. [64]
    Based on the evidence of the Council’s witnesses the treatment Mr Gorgievski received was:
    1. (a)
      review of his complaint as to sexual harassment after an initial decision was made not to investigate the complaint;
    2. (b)
      a decision was made refusing to investigate further;
    3. (c)
      being excluded from the Library for 6 months;
    4. (d)
      delay in the handling of his right to information application;
    5. (e)
      provision of redacted documents by the Office of Information Commissioner.

What treatment does Mr Gorgievski say he received?

  1. [65]
    Mr Gorgievski has filed a number of documents setting out the treatment he complains about. I will now consider whether I accept that the alleged treatment occurred. Once I have decided what treatment Mr Gorgievski received, I will consider why Mr Gorgievski received that treatment.
  2. [66]
    A statement of contentions filed 22 September 2020 (Exhibit 4) includes the following as descriptions of Mr Gorgievski’s treatment.
    1. (a)
      On an unspecified date he spoke to a person he described as the head librarian “Mark” and made his allegations of sexual harassment against Mr Harris, to which Mark allegedly said: ‘I don’t believe you. He wouldn’t possibly do that because he’s married to a woman. He isn’t gay”. Mark allegedly said he would ban him from the Library if he did not withdraw the complaint of sexual harassment.  In order not to banned he withdrew his complaint.

The alleged interaction is vague as to date and personnel. I cannot find that the interaction occurred.

  1. (b)
    CCTV footage of the incident on 25 October 2019 was never produced. I accept that is the case.
  2. (c)
    Council breached their Complaints (Administrative Actions) Policy and Procedures section 2.2.2 by not conducting an investigation consistent with the seriousness and impact of the complaint.

A desktop review was conducted by Ms Fleming. Relevant personnel including Ms Richards, Ms Bukar and Mr Anderson concurred in the outcome. Council relied on section 2.2.1 (3) of the Policy to conclude its investigation. I do not consider the Policy was breached.

  1. (d)
    Perceived belligerence on the part of the Council through the Complaint process, so in fear of reprisal he withdrew the complaint.

There is no evidence of belligerence on the part of any Council employee in its dealings with Mr Gorgievski. To the contrary, the video and audio evidence reveals belligerence of the part of Mr Gorgievski. I cannot find the alleged treatment occurred.

  1. (e)
    The reason given for not investigating the complaints is that they lacked substance, were vexatious and contained nothing that could be investigated. This was not the view of the Queensland Human Rights Commission.

I accept that was the conclusion reached by the relevant Council personnel.

  1. (f)
    From the beginning of the assessment, Council was not acting impartially and had no regard for his alleged discomfort in attending the Library and impact on his mental health.

Mr Gorgievsky’s complaint was reviewed by Ms Fleming and she found the complaint to be without substance and to be vexatious. I do not accept that because the outcome of the complaint was adverse to Mr Gorgievski that he did not receive a fair review on the information available to the Council. I accept the evidence of Ms Fleming and Ms Richards in relation to the conduct of the review into his complaint and find the review to be fair. I do not accept the Council did not act impartially.

  1. (g)
    The complaint was not taken seriously by refusing to investigate and formally interview Mr Harris.

I accept the evidence of Ms Fleming, Ms Richards and Mr Anderson that the complaint was taken seriously and was reviewed in a reasonable way. I do not accept that Mr Gorgievski received the treatment alleged.

  1. (h)
    Mr Harris and the Council have attempted to discredit him by suggesting he has acted inappropriately in the Library.

I accept that some evidence of Mr Gorgievski’s prior conduct was before Ms Richards, Ms Fleming and Mr Anderson. The evidence was relevant to Mr Gorgievski’s credit.

  1. (i)
    Mr Harris and Council conspired to make false and misleading statements with the intention of deceiving QCAT by manufacturing evidence to use in support of their application for a Peace and Good Behaviour Order against him.

There is no evidence of conspiracy or the manufacturing of evidence by Mr Harris and the Council. The video evidence of Mr Gorgievski’s conduct on 3 December 2019 and other photographic and video evidence is compelling evidence to justify an application for a Peace and Good Behaviour Order.

  1. (j)
    Mr Harris, supported by Council made a complaint of stalking to police immediately after their attempt to obtain a Peace and Good Behaviour Order was unsuccessful.

The transcript of the first mention of the application for a Peace and Good Behaviour Order reveals that the application was not unsuccessful.[24] The application was adjourned to a hearing of the application with Directions made in relation to filing of material.

The transcript reveals that the Magistrate upon reading the material and hearing from Mr Harris, Mr Taylor and Mr Gorgievski said that she strongly urged Mr Harris to make a stalking complaint.

The Magistrate made it clear that the background to the matter was irrelevant, and it was Mr Gorgievski’s behaviour which was relevant, that the behaviour was not appropriate and that something needed to be done about it.

I do not accept Mr Gorgievski’s submission that the transcript of the first mention of the application for a Peace and Good Behaviour Order has been altered so as to be inaccurate. That is improbable and there is no evidence to support that assertion.

In all, in terms of an event which occurred, a complaint of stalking was made to the police on the day of the first mention of the application for a Peace and Good Behaviour Order.

  1. (k)
    False and misleading statements and manufactured evidence were used to make a complaint of stalking to the police.

I do not accept this submission. Mr Harris’ complaints about Mr Gorgievski’s conduct have been accepted by me as truthful accounts of events. There is no evidence as to what evidence is false and misleading, nor any evidence as to how or in what way evidence has been manufactured. Mr Harris’ version of events is supported by video and photographs.

  1. [67]
    Mr Gorgievski’s statement of evidence made 4 December 2020 (Exhibit 5) adds further allegations as to his treatment:
    1. (a)
      Ms Webber made a homophobic comment by saying: ‘He’s not gay you are!’

I accept the evidence of Ms Webber and find that she did not make the alleged statement.

  1. (b)
    Provision of documents through the RTI process was deliberately delayed so that an unfair advantage would be achieved in Mr Harris obtaining a Peace and Good Behaviour Order and when that was unsuccessful making a stalking complaint. Mr Gorgievski says that the delay prevented him defending himself against the Order granted on 28 February 2019.

I do not accept this submission and find that this alleged treatment did not occur. I find that the RTI process was delayed. I accept Ms Webber’s evidence that provision of documents was delayed through pressure of work.

Consistent with the observations of the Magistrate on 5 December 2019, the important and relevant information in relation to the application for a Peace and Good Behaviour Order and in relation to the charge of stalking is Mr Gorgievski’s own conduct. The allegation as to the reasons for delay in the RTI process is based on speculation and is not supported by any evidence.

  1. (c)
    Council treated the filing of his Complaint with the Human Rights Commission as an attempt to remain in contact with Mr Harris and to avoid being banned from the Library. Council insinuated Mr Gorgievski was infatuated with Mr Harris.

I accept that is the position of the Council. The assertion does not form part of the Complaint referred to the Tribunal, occurring as it does as part of the Human Rights Commission process.

  1. [68]
    In his statement of evidence made 31 May 2021 (Exhibit 9), Mr Gorgievski sets out his allegations across 100 pages, which are summarised in the table above.
  2. [69]
    I note, relevant to directly discriminatory treatment, Mr Gorgievski alleges that a meeting held on 6 December 2019 between multiple Council staff for the purpose of describing events involving Mr Gorgievski and the appropriate safety response was a contrived response to his allegations,[25] created as a “Grand Production” to make it appear Mr Gorgievski was the perpetrator of harassment against Mr Harris and that he is the victim. Elsewhere, Mr Gorgievski asserts the meeting did not in fact occur.

I do not accept this submission. I accept that the meeting occurred and that the minutes in evidence are an accurate record of a meeting which in fact occurred. There is no evidence that the meeting and the minutes are a concoction.

  1. [70]
    Mr Gorgievski goes on to allege that the legal representative for Council developed the record of the meeting as a means of addressing his allegations and “making it appear to the Tribunal that there was a serious risk to Mr Harris’ safety at the Library by deliberately manipulating accounts of events, exaggerating allegations and making false and misleading statements based on manufactured evidence as part of their cunning and elaborately plotted strategy to be able to provide evidence of their assessment of my complaint…”

I do not accept this submission. It is speculation, improbable and not supported by evidence. I find that the alleged treatment did not occur.

  1. [71]
    The allegations as to how he was treated set out in the table above capture the claims of treatment I have extracted and considered. In addition, taken from the table, Mr Gorgievski says:
    1. (a)
      Mr Harris said that he was not gay and made false and misleading statements to the Council, as a means of establishing that he did not engage in sexual harassment of Mr Gorgievski.

I cannot locate in the evidence where Mr Harris has told the Council that he is not gay. However, it is possible that has occurred. There is no evidence other than Mr Gorgievski’s speculation that this is a false and misleading statement or that it was a strategy to defend the allegation of sexual harassment. I do not accept the allegation as establishing any sort of treatment.

  1. (b)
    Mr Harris said that he was not gay and made false and misleading statements to the Magistrates Court in respect of the Peace and Good Behaviour Order.

The statement was made in the Magistrates Court on 5 December 2019 when Mr Harris was seeking a Peace and Good Behaviour Order.[26]

The Magistrate made a comment to Mr Gorgievski in relation to his conduct. Mr Gorgievski said:[27]

It’s trying to get someone’s attention who’s afraid of being gay-bashed.  I think that he thinks that I’m not gay and that I’m going to gay-bash him or that I’ll expose him to his wife and children.

Mr Harris said:[28]

For record, I’m not gay

In the context of this exchange, I do not consider any false and misleading statement has been made to the Magistrates Court by Mr Harris. The allegation is based on speculation without any supporting evidence.

  1. (c)
    Mr Harris said that he was not gay and made false and misleading statements to the Magistrates Court in respect of the stalking charge.

I do not accept this submission. I do not consider any false and misleading statement has been made by Mr Harris. The allegation is based on speculation with no supporting evidence.

  1. (d)
    Shannon Richards assumed that he was guilty of harassing Mr Harris because he is gay and Mr Harris is not gay.

I do not accept the submission. It is speculative and there is no evidence to support it.

  1. (e)
    Shannon Richards, in breach of the Council’s Policies and Procedures said: ‘I would be loathe to dedicate the team to a more detailed investigation, given what we know about the complainant’, referring to Mr Harris’ allegations against Mr Gorgievski. Mr Gorgievski asserts those allegations were false and misleading and made only to cover up the complaint of sexual harassment.

I accept that Ms Richards made the statement attributed to her.[29] I do not find that there was a failure to follow the Council’s policies and procedures or that Mr Harris allegations about Mr Gorgievski were false and misleading. The statement was made in the context of a decision to conduct a review of Mr Gorgievsli’s complaint, in the knowledge of Mr Gorgievski’s conduct on 3 November 2019.

  1. (f)
    Shannon Richards perpetuated a homophobic comment by referring in an email to other relevant personnel that a formal investigation was unnecessary because the particular complaint that Mr Harris looked at Mr Gorgievski’s legs could not be tested or validated. Ms Richards used a different expression to describe the complaint, which I take to be her interpretation of the complaint, that “he undressed me with his eyes”.

I do not think there is anything homophobic in that comment. Mr Gorgievski’s rationale for the allegation that the comment is homophobic is confused at best. He says that these words are offensive to a man, when it is obviously a comment a woman would make about a man, not a comment a man would make about a man. There is no basis for that assertion. It is not accepted.

  1. (g)
    Paula Perry dismissed his complaint about Mr Harris looking at his legs as something which could not be investigated and likened him to a woman by referring to it as “He undressed me with his eyes”.

The comment was not made by Ms Perry, it appears in an email authored by Ms Richards, dealt with earlier. Ms Perry did not dismiss the complaint. She incorrectly considered that no further investigation was carried out following an initial review, but in fact Ms Fleming conducted a review.

  1. (h)
    Shannon Richards refused to review the investigation into his complaint, failed to interview him and allow him to submit further evidence and CCTV footage.

I do not accept this occurred. Ms Richards arranged the review by Ms Fleming, including by reference to CCTV footage and Mr Worrell.

  1. (i)
    The Council failed to place Mr Harris on administrative leave following referral of the Complaint to the Tribunal.

The conduct of Council after lodgement of the Complaint does not form part of the matters referred to this Tribunal for determination. The question of whether Mr Harris should have been placed on leave is not an issue which goes to the treatment of Mr Gorgievski.

Summary - treatment received by Mr Gorgievski

  1. [72]
    For the purpose of the analysis as to whether direct discrimination occurred, I find in accordance with my earlier consideration of the evidence, that Mr Gorgievski received the following treatment:
    1. (a)
      a review of his complaint as to sexual harassment, after a decision was made not to conduct a formal investigation into the complaint;
    2. (b)
      a decision was made refusing to investigate further;
    3. (c)
      being excluded from the Library for 6 months;
    4. (d)
      delay in the handling of his right to information application; and provision of redacted documents by the Office of Information Commissioner.
    5. (e)
      CCTV footage of the incident on 25 October 2019 was never produced;
    6. (f)
      the reason given for not investigating the complaints is that they lacked substance, were vexatious and contained nothing that could be investigated.
    7. (g)
      a complaint of stalking was made to the police on the day of the first mention of the application for a Peace and Good Behaviour Order.

Why did the treatment occur? Was the treatment on the basis of Mr Gorgievski’s attribute as a gay man or as a man?

  1. [73]
    A review was conducted by Ms Fleming, under the supervision of Ms Richards, because of the complaint made by Mr Gorgievski about alleged sexual harassment.
  2. [74]
    Mr Gorgievski’s complaint about exclusion from the Library was referred to Ms Buker who excluded him from the Library on the basis of his conduct. I accept the evidence of Mr Worrell as to the reasons for exclusion of Mr Gorgievski from the Library for a period of 6 months set out in the letter to him from Ms Buker.
  3. [75]
    I accept the evidence of Ms Richards, Ms Fleming, Mr Anderson and Mr Worrell as to why the review was concluded and the exclusion complaint was finalised on the basis that no further investigation would be conducted.
  4. [76]
    The conclusion was rationally based on the evidence before them. Importantly, as advised to Mr Gorgievski, the Complaints (Administrative Actions) Policy and Procedures of the Council was followed as justification for not investigating and taking further action, because there were reasonable grounds to find that Mr Gorgievski had engaged in conduct considered stalking and harassing an employee of Council and that the complaints have likely been brought in an attempt to continue stalking and harassing that person.[30]
  5. [77]
    Further the Library ban was made because Mr Gorgievski’s conduct brought him within the terms of s 17.1(c) Local Law No 4 (Libraries) 2008.
  6. [78]
    I accept the evidence of Ms Webber that the reason for the delay in processing Mr Gorgievski’s request for information was because of pressure of work and that the redacted documents were provided as part of a process undertaken by the Office of Information Commissioner.
  7. [79]
    I accept the evidence of Ms Fleming that CCTV footage was not considered as part of the review because it no longer existed.
  8. [80]
    I accept the evidence of Mr Harris that a complaint of stalking was made to the police on the strong recommendation of the Magistrate in the first mention of the application for a Peace and Good Behaviour Order.
  9. [81]
    I find that the treatment experienced by Mr Gorgievski was not because of his attribute as a gay man, or because he is a man, but rather for the reasons I have found.

Was that treatment less favourable than another person, who is not a gay man, is or would be treated, in circumstances which are the same or not materially different?

  1. [82]
    Of the treatment complained about, which I have found occurred, the question is whether that treatment was less favourable than what would have been experienced by a relevant comparator. That is a person, who is not a gay man, but who had made complaints of sexual harassment and exclusion from the Library and was thought by Council to be stalking and harassing a Council employee.
  2. [83]
    The same analysis applies insofar as Mr Gorgievski says that the attribute forming the basis of direct discrimination was his sex, as a man.
  3. [84]
    I conclude that because of the reasons given for the treatment experienced by Mr Gorgievski, the same treatment would have been experienced by a comparator who is not a gay man or is woman, who made a complaint of sexual harassment and exclusion from the Library in circumstances where such a person was thought to be stalking and harassing a Council employee.
  4. [85]
    I find that Mr Gorgievski was not treated less favourably than a person who is not gay or is a woman, in circumstances that are the same or not materially different.

Conclusion

  1. [86]
    On the basis of the foregoing findings and reasoning, I conclude that there has been no direct discrimination of Mr Gorgievski.

Indirect discrimination

  1. [87]
    The allegations as to indirect discrimination are misconceived.
  2. [88]
    Mr Gorgievski’s assertion set out in paragraphs 58 and 59 of his statement of evidence in reply (Exhibit 9), is that a term was imposed on him, that for his complaint to be taken seriously, he must be a Library employee. Similarly, he asserts at paragraphs 74 and 75 of Exhibit 9 that Mr Worrell imposed a term on him that he must be a Library employee to be regarded as credible in his complaint and to have his complaint taken seriously.
  3. [89]
    In Mr Gorgievski’s closing submissions he asserts that a term was imposed on him as a male Library patron, that ‘you must be female’ to be believed and for the complaint to be investigated.
  4. [90]
    There is no evidence of the imposition any such terms in any of the communications between Council employees and Mr Gorgievski. Nor can the imposition of those terms be inferred on the known facts. The Council has a Complaints Policy. It was followed. However, apart from the review, no formal investigation was pursued because of Mr Gorgievski’s own conduct in stalking and harassing Mr Harris, not because of any supposed requirement that a complainant must be a Library employee or a female to be taken seriously.

Conclusion

  1. [91]
    The complaint as to indirect discrimination is not established.

Victimisation

Issue

  1. [92]
    By s 129 of the AD Act a person must not victimise another person.
  2. [93]
    In summary, victimisation will have occurred within the meaning given in s 130 of the AD Act, if the respondents acted to the detriment of Mr Gorgievski, because Mr Gorgievski alleged that Mr Harris sexually harassed him, in contravention of the AD Act.

Acts said to amount to victimisation

  1. [94]
    Mr Gorgievski makes forty complaints of victimisation set out in the table above.
  2. [95]
    In addressing the issue of Mr Gorgievski’s credibility and whether treatment alleged to have been experienced by Mr Gorgievski occurred I have made findings whereby I accept the evidence of Mr Harris and the witnesses called for the respondents.
  3. [96]
    These findings are relevant to many of Mr Gorgievski’s complaints of victimisation, which may be grouped into categories:
    1. (a)
      Banning from the Library (Allegations 1, 2, 3, 5, 6, 8, 12, 13 set out in the table above).
    2. (b)
      Mr Worrell coerced Mr Gorgievski to withdraw his complaint or be banned from the Library (Allegation 7).
    3. (c)
      Mr Harris manufactured evidence and conspired to cover up Mr Gorgievski’s complaint (Allegation 9, 26).
    4. (d)
      Failure by Council to investigate Mr Gorgievski’s complaint (Allegation 10, 11, 16, 17, 18, 37, 19, 20).
    5. (e)
      Delay and refusal of access to documents in the RTI process (Allegation 21, 23, 24, 34, 22)
    6. (f)
      Redacted documents provided under the RTI (Allegation 25).
    7. (g)
      The Peace and Good Behaviour Order and Stalking complaint were the result of conspiracy, manufactured evidence, false statements, for the purpose of coercion and other improper purposes (Allegation 26, 27, 28, 29, 30, 31, 35, 36);
    8. (h)
      Conduct of the proceedings in the Human Rights Commission and in this Tribunal (Allegation 32, 33, 39, 40).
  4. [97]
    If the alleged conduct occurred, the questions for the Tribunal are whether detriment was caused to Mr Gorgievski and why the conduct occurred. As to the latter point, there must be some causal connection between the conduct complained about and the complaint of sexual harassment made by Mr Gorgievski. Dealing with each of the allegations of detriment in turn:

Banning

  1. (a)
    Mr Gorgievski was banned from the Library for a period of 24 hours because of his confrontation with Mr Harris on 25 October 2019. Mr Gorgievski was then banned from the Library for a period of 6 months for the reasons given in the letter from Ms Buker to him dated 8 November 2019, which is set out in full earlier in this decision.

On the basis of the reasons I have found existed for banning Mr Gorgievski from the Library, I find that Mr Gorgievski was not banned from the Library because of his complaint made to the Council that he was sexually harassed by Mr Harris There has been no victimisation on this ground.

Coercion to withdraw complaint

  1. (b)
    As determined earlier in this decision it is not possible to find on the evidence that a conversation occurred with Mr Worrell (mistakenly referred to as “Mark”) where he coerced Mr Gorgievski to withdraw his complaint or be banned from the Library.

For this reason, I find that no act of victimisation has occurred as alleged.

Manufactured evidence

  1. (c)
    In relation to the assertion that Mr Harris manufactured evidence and conspired to cover up Mr Gorgievski’s complaint, I have previously found the allegation has not been established. I have accepted the evidence of Mr Harris supported by the evidence of Mr Worrell, Mr Taylor, Mr Banks and Mr Kakish as to the events which led to his application for a Peace and Good Behaviour Order, which I consider was a reasonable response to the behaviour of Mr Gorgievski on 25 October 2019, 3 November 2019, 5 November 2019 and 20 November 2019.

The conduct asserted by Mr Gorgievski did not occur. No act of victimisation has occurred as alleged.

Failure to investigate

  1. (d)
    As to the allegation of failure to investigate, I find that a fair review was conducted into Mr Gorgievski’s complaint, and that no further investigation was undertaken - for the reasons given by Ms Richards, Ms Fleming and Mr Anderson. Of particular importance are the provisions of s 2.2.1 of the Complaints policy.

On the basis of the evidence as to the reasons for the outcome of the review, and consequent failure to investigate further, I find that Mr Gorgievski has not suffered a detriment because of his complaint of sexual harassment.

RTI process

  1. (e)
    As to the allegation of delay and refusal of access to documents in the RTI process, it is the case that delay occurred resulting in a deemed refusal to provide the requested documents and the request then being dealt with by the Office of Information Commissioner. Documents as requested were provided to Mr Gorgievski. I have accepted the evidence of Ms Webber in relation to the reason for the delay being pressure of work.

On the basis of Ms Webber’s evidence, as to her reasons for delay, I do not consider that any act of victimisation has occurred because of the complaint of sexual harassment.

Redacted documents

  1. (f)
    Mr Gorgievski complains that he was provided with redacted copies of documents. Ms Webber’s evidence is that 194 documents were released in full and 56 documents were released in part, bearing redactions. Ms Webber said the reason for the redaction process was to remove irrelevant matters and to protect private information. Ms Webber said that she endeavoured to ensure privacy of information was balanced with the public interest in provision of documents. The Office of Information Commissioner confirmed that the documents in their redacted form could be forwarded to Mr Gorgievski.[31]

I accept the evidence of Ms Webber as to the reasons for the redactions. She was not required for cross examination in relation to these matters. On this basis, I do not consider that any act of victimisation has occurred because of the complaint of sexual harassment.

Peace and Good Behaviour Order and Stalking charge

  1. (g)
    In relation to the Peace and Good Behaviour Order and the Stalking charge, I find that there has been no conspiracy, manufactured evidence, coercion or improper purpose associated with the action taken by Mr Harris. Mr Harris’ evidence and the evidence of the other witnesses who supported him in relation to these matters is accepted by me. The video, photographic and audio evidence as well as the transcript of the first mention of the application for a Peace and Good Behaviour Order make it very clear that Mr Gorgievski’s own conduct was the reason for the application and the charge.

On this basis, I do not consider that Mr Gorgievski has established any conduct amounting to victimisation because of his complaint of sexual harassment.

Conduct during the legal proceedings

  1. (h)
    Mr Gorgievski says he has been victimised by Council’s conduct during the Queensland Human Rights Commission process in seeking to have the application rejected. Also, during the Tribunal process in seeking to have Mr Harris excused from the compulsory conference and asking for the matter to be heard in the Magistrates Court in order to have security available.

In their closing submissions the respondents submit that they were within their legal rights to take both these steps and that in cross-examination Mr Gorgievski accepted that was the case.

I find that Mr Gorgievski suffered no detriment as a result of the actions of the respondents. His complaint proceeded to be referred to the Tribunal and has been heard by the Tribunal. At the date of the hearing the Peace and Good Behaviour order was in place. It was not an unreasonable request on the part of the respondents to request a safe place for the hearing to proceed. The hearing proceeded without incident.

I find that no victimisation occurred because of the conduct of the Council and Mr Harris in the course of the matter.

Conclusion

  1. [98]
    The complaint of victimisation is dismissed.

Human Rights

  1. [99]
    In his closing submissions Mr Gorgievski referred to the Human Rights Act 2019 (Qld) (HR Act), without directly alleging any contravention of the HR Act. His complaint to the Queensland Human Rights Commission did not allege any contravention, and his complaint referred to this Tribunal was not amended to cover any such allegations. I will not deal further with the issue.
  2. [100]
    However, this Tribunal must observe its obligations under the HR Act in making its decision.
  3. [101]
    In terms of the Tribunal’s obligations, no question of statutory interpretation arises because there is no ambiguity in any of the relevant provisions of the AD Act which are in any event consistent with the HR Act.[32]
  4. [102]
    I consider that in making this decision I am exercising a judicial power by way of the enforcement of existing legal rights.[33] I am bound to apply the HR Act to the conduct of these proceedings where the nature of the function I am performing involves applying or enforcing human rights which relate to that function.[34] Mr Gorgievski’s human rights affected by this proceeding are:
    1. (a)
      recognition and equality before the law;[35] and
    2. (b)
      the right to a fair hearing.[36]
  5. [103]
    Mr Gorgievski has been heard in the proceeding. His evidence and submissions have been taken into account. The hearing has been conducted in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which ensures a fair hearing.
  6. [104]
    I am satisfied that the Tribunal’s obligations under s 5(2)(a) of the HR Act have been met.

Remedy

  1. [105]
    Because I have found no contravention of the AD Act, Mr Gorgievski is not entitled to any remedy.
  2. [106]
    However, for completeness I will address the issue.
  3. [107]
    Mr Gorgievski’s claims are set out in various documents filed in the Tribunal. In his closing submissions Mr Gorgievski seeks:
    1. (a)
      an award of general damages in an amount of $150,000 and aggravated damages of $50,000 plus interest and costs. As Mr Gorgievski has been self-represented in this matter he has no entitlement to costs.
    2. (b)
      the imposition of 45 penalty units or a term of imprisonment of up to 3 months for Mr Harris and Mr Banks. The Tribunal does not have the power to make these orders.
  4. [108]
    In his statement of evidence in reply (Exhibit 9) Mr Gorgievski seeks $10,000.00 financial loss as a result of not being able to conduct his work in the Council Library; $10,000.00 in associated legal expenses and Tribunal costs.
  5. [109]
    Exhibit 9 also claims general damages of $500,000 plus interest. I assume this sum has been supplanted by the amount claimed in the closing submissions.
  6. [110]
    Relevant to the claim for general damages, Mr Gorgievski’s statement of contentions filed in the Tribunal (Exhibit 3) says that he fell into a deep depression and suffers from anxiety brought on by the vexatious proceedings against him, which I take to the Peace and Good Behaviour Order and the stalking charge.
  7. [111]
    The statement of contentions also seeks a private apology, the implementation of programs to eliminate unlawful discrimination.
  8. [112]
    That request is repeated in Mr Gorgievski’s statement of evidence (Exhibit 5) along with a claim for $40,000 as compensation for general damages for undue stress and aggravation and generally hurt and humiliation.
  9. [113]
    The outline of submissions (Exhibit 8) seeks $100,000.00 for general damages.
  10. [114]
    Despite addressing the question of remedy early and frequently in the proceedings Mr Gorgievski has provided no evidence of any medical condition or opinion that a medical condition has been caused by the matters alleged by Mr Gorgievski. Nor has he filed any evidence of financial loss such as income tax returns. In cross-examination Mr Gorgievski said that he could not substantiate any loss of income.[37]
  11. [115]
    On this basis I do not consider that Mr Gorgievski is entitled to recover any amount relevant to a medical condition or to economic loss. If Mr Gorgievski had succeeded in his claim, I consider he would have been entitled to an award of compensation for hurt and humiliation.
  12. [116]
    I do not consider the extraordinary amount and range of compensation sought by Mr Gorgievski to be realistic or proportionate.
  13. [117]
    Given that the alleged sexual harassment related to looking, nodding and smiling it falls at the lower end of the scale of conduct, I would award the sum of $5,000.00.
  14. [118]
    If Mr Gorgievski succeeded in his claim of unlawful discrimination, I would award the sum of $10,000.00.
  15. [119]
    If Mr Gorgievski succeeded in his claim of victimisation, I would award the sum of $10,000.00.
  16. [120]
    I have not been referred to any cases involving similar conduct which might inform the exercise of my discretion. However, apart from the consideration I have nominated in relation to sexual harassment, I have taken into account the importance of government services being provided in a fair and lawful way and the importance of people being free to make complaints under the AD Act which would be undermined by acts of victimisation.

Order

  1. [121]
    The application is dismissed.
  2. [122]
    The respondents have liberty to apply in relation to their costs of the proceeding.
  3. [123]
    Any submissions in relation to costs by the respondents must be filed and given to the applicant by 4:00pm on 7 November 2022.
  4. [124]
    Any submissions in response must be filed by the applicant and given to the respondents by 4:00pm on 21 November 2021.
  5. [125]
    Any application for costs of the proceeding will be determined on the papers not before 21 November 2022.

Footnotes

[1] Anti-Discrimination Act 1991 (Qld), s 118.

[2]  Ibid, s 6, s 7, s 8, s 9, s 10, s 11.

[3]  Ibid s 130.

[4] Briginshaw v Briginshaw (1938) 60 CLR 336.

[5] Poniatowska v Hickinbotham [2009] FCA 680, [294].

[6]  T1-68 L 17-19, L 37- 39; T1- 75 L 30- 47; T1-76 L l – 5.

[7]  Affidavit of James Frederick Harris, sworn 7 January 2021 (Exhibit 10).

[8]  Affidavit of Amer Barham Eid Kakish, sworn 7 January 2021 (Exhibit 14).

[9]  Affidavit of Christopher Cecil Taylor sworn 7 January 2021 (Exhibit 12).

[10]  Affidavit of Gregory David Worrell sworn 7 January 2021 (Exhibit 11).

[11]  Affidavit of Amer Barham Eid Kakish sworn 7 January 2021 (Exhibit 14), attachment AK-2.

[12]  Affidavit of Graeme Banks, sworn 7 January 2021 (Exhibit 17).

[13]  Affidavit of Brenda Coburn Webber sworn 7 January 2021 (Exhibit 18).

[14] Anti-Discrimination Act 1991 (Qld), s 7(n), Schedule 1 (Sexuality).

[15]  Ibid s 10.

[16]  Ibid s 11.

[17]  Ibid s 205.

[18]  Referral of Matter filed 17 August 2020, attachment (Exhibit 2).

[19]  Affidavit of John Anderson sworn 7 January 2021(Exhibit 15).

[20]  Affidavit of Gregory David Worrell sworn 7 January 2021 (Exhibit 11) attachment GW-8.

[21]  Affidavit of Gregory David Worrell sworn 7 January 2021 (Exhibit 11) attachment JA-18.

[22]  Ibid attachment JA-1.

[23]  Affidavit of Gregory David Worrell sworn 7 January 2021 (Exhibit 11) attachment J-A 33.

[24]  Affidavit of Christopher Taylor, sworn 7 January 2021 (Exhibit 12) attachment CT-7.

[25]  Affidavit of Christopher Taylor, sworn 7 January 2021 (Exhibit 12) attachment CT-6.

[26]  Affidavit of Christopher Taylor, sworn 7 January 2021 (Exhibit 12) attachment CT-7.

[27]  Ibid 4 [46]-[47].

[28]  Ibid 5 [4].

[29]  Affidavit of Shannon Richards, sworn 7 January 2021 (Exhibit 13), attachment SR-3.

[30] Affidavit of John Anderson, sworn 7 January 2021 (Exhibit 15), attachment JA-18.

[31]  Affidavit of Brenda Webber sworn 7 January 2021 (Exhibit 18) attachment BW-19.

[32] Human Rights Act 2019 (Qld) s 4(f), s 48; Momcilovic v R (2011) 245 CLR 1, [49]-[50], [169]- [171], [565]-[566], [684].

[33] Re Cram, ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, 148.

[34] Re Kracke v Mental Health Review Board (2009) 29 VAR 1, [250],[254]; Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623, [222]-[223].

[35] Human Rights Act 2019 (Qld), s 15(1).

[36]  Ibid s 31.

[37]  T2-35, L6

Close

Editorial Notes

  • Published Case Name:

    Gorgievski v Gold Coast City Council & Anor

  • Shortened Case Name:

    Gorgievski v Gold Coast City Council

  • MNC:

    [2022] QCAT 365

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick

  • Date:

    25 Oct 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Innes v Electoral Commission of Queensland (No 2)(2020) 5 QR 623; [2020] QSC 293
2 citations
Jump To
Cite 1 - (2020) 5 QR 623
Cite 2 - (2020) 5 QR 623
Momcilovic v The Queen (2011) 245 CLR 1
2 citations
Jump To
Cite 1 - (2011) 245 CLR 1
Cite 2 - (2011) 245 CLR 1
Poniatowska v Hickinbotham [2009] FCA 680
2 citations
Jump To
Cite 1 - [2009] FCA 680
Cite 2 - [2009] FCA 680
Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140
2 citations
Jump To
Cite 1 - (1987) 163 CLR 140
Cite 2 - (1987) 163 CLR 140
Re Kracke v Mental Health Review Board (2009) 29 VAR 1
2 citations
Jump To
Cite 1 - (2009) 29 VAR 1
Cite 2 - (2009) 29 VAR 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.