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Outside Lane Limited v Jones[2015] QCATA 183

Outside Lane Limited v Jones[2015] QCATA 183

CITATION:

Outside Lane Limited v Jones [2015] QCATA 183

PARTIES:

Outside Lane Limited

Midlane (Qld) Pty Ltd

(Applicants/Appellants)

v

Abbey

Will Jones

(Respondents)

APPLICATION NUMBER:

APL423 -14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

24 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 29 August 2014 is set aside.
  4. The proceeding is remitted to the tribunal, constituted by a different member, for rehearing.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – ANTI-DISCRIMINATION – where sexual harassment – whether in the course of work – whether reasonable steps to prevent incident – whether quantum appropriate – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – COSTS – where tribunal ordered indemnity costs – where no application for costs – where appellant not given opportunity to file submissions on costs – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – PROCEDURE – where delay between hearing and reasons for decision – where findings about credit of witnesses – whether reasons for findings adequate – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) 2ss 100, 102(3)

Anti-Discrimination Act 1991 (Qld) s 133

Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189

APPEARANCES and REPRESENTATION (if any):

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

  1. [1]
    Ms Abbey was employed by Midlane (Qld) Pty Ltd, a wholly owned subsidiary of Outside Lane Limited[1]. As part of her employment, she was offered, rent free, the spare room in a unit occupied by Howard Smeaton, the night caretaker at one of the Midlane properties, an employee of Outside Lane.
  2. [2]
    One morning, Ms Abbey woke to find Mr Smeaton in her bed. That incident, and the way it was handled by Midlane and/or Outside Lane, led to Ms Abbey making a claim for sexual harassment and sexual discrimination. The tribunal found that both complaints were substantiated and ordered Outside Lane pay Ms Abbey over $355,000 plus costs on an indemnity basis. Midlane was also required to implement a program directed to the elimination of discrimination and harassment.
  3. [3]
    Both companies filed an application for leave to appeal. At a directions hearing on 10 December 2015, the parties handed up a consent order for the appeal tribunal’s consideration. Unusually, both parties thought that the appeal should be allowed. Whether or not an appeal should be allowed is a matter for the appeal tribunal’s determination, despite the views of the parties. It is necessary for me to, briefly, consider the grounds for appeal to determine whether the appeal should, in fact, be allowed.

Insufficient reasons concerning the tribunal’s conclusions about Ms Abbey’s credit

  1. [4]
    Ms Abbey’s evidence about the events with Mr Smeaton were not disputed. The companies did dispute Ms Abbey’s credibility about her medical history and the impact of Mr Smeaton’s actions.
  1. [5]
    The companies maintained that Ms Abbey was evasive. The tribunal did not share that view, instead finding there was no basis for concluding that she was an evasive or dishonest witness[2]. The companies submit that the tribunal’s reasons for preferring Ms Abbey are deficient, particularly in view of the significant delay between the hearing and the delivery of the reasons. They referred the appeals tribunal to the Federal Court of Australia decision of Expectation Pty Ltd v PRD Realty Pty Ltd[3]:

In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision.

  1. [6]
    The tribunal heard Ms Abbey’s claim on 18 and 19 February 2013. It delivered its decision on 29 August 2014. There has been a significant delay between the hearing and the published decision. The parties deserve a comprehensive statement of the relevant evidence and I am not satisfied that the tribunal provided one, given that Ms Abbey’s evidence was critical to the significant compensation order.

The caretaking role and the accommodation arrangement

  1. [7]
    The tribunal acknowledged that Ms Abbey’s evidence conflicted with that of her employers in relation to the caretaking role and the accommodation arrangement. The tribunal did not, however, resolve those conflicts because it found the evidence of limited relevance when applying the Anti-Discrimination Act 1991 (Qld) (‘Anti-Discrimination Act’ or ‘the Act’). Outside Lane argued, and continues to argue, that the character of the caretaking role and the accommodation arrangement were central to the question of whether Mr Smeaton contravened the Act “in the course of work”, given that the incidents occurred in his private residence and when the parties were not at work.
  2. [8]
    But the tribunal did consider Mr Smeaton’s caretaking role[4] and the accommodation arrangement[5]. It was, therefore, obliged to consider, and decide upon, discrepancies in the witnesses’ evidence. It did not do so.

Vicarious liability - in the course of work/in connection with the employment of the employee

  1. [9]
    Under s 133(1) of the Anti-Discrimination Act, if a person’s worker contravenes the Act in the course of work, both the person and the worker will be liable for the contravention.
  2. [10]
    In considering vicarious liability, the tribunal posed this question: Was Mr Smeaton’s contravention of s 118 “in some way related to, or associated with, his work?” That is not the test in s 133 of the Anti-Discrimination Act. It is a broader test, which is more likely to be satisfied. The tribunal erred in its articulation of the test and erred in the application of the test.

Thepreventative steps

  1. [11]
    Under s 133(2) of the Anti-Discrimination Act, a person will not be liable for the acts of a worker if it can be proven, on the balance of probabilities, that it took reasonable steps to prevent the worker contravening the Act.
  1. [12]
    The tribunal found that Mr Smeaton was subject to an unwritten and uncommunicated rule that behaviour such as sexual harassment would result in instant dismissal. Outside Lane submits that there was no evidence to support this finding. The tribunal did not provide the factual basis for its finding. It is, therefore, an arguable ground of appeal.
  1. [13]
    The tribunal found that Outside Lane did not take reasonable steps as required under s 133(2) because it took no steps before the incident occurred.
  1. [14]
    Outside Lane submits that there was no evidence before the tribunal that it knew, or should have known, that Ms Abbey was at risk of sexual harassment. It therefore argued that the absence of steps before the incident did not prove that it failed to take reasonable steps.
  1. [15]
    Outside Lane’s submissions that there was no evidence to support the tribunal’s finding do raise an arguable ground of appeal.

Costs and costs on an indemnity basis

  1. [16]
    The tribunal ordered Outside Lane pay Ms Abbey’s costs on an indemnity basis. Ms Abbey made no claim for costs in her amended contentions or submission to the tribunal. The tribunal did not put Outside Lane on notice that it intended to order costs so that Outside Lane could be heard on the issue.
  1. [17]
    Although the tribunal considered sections 100 and 102(3) of the QCAT Act in its decision to order costs, it did not give any reason for the unusual step of ordering indemnity costs. The tribunal’s decision on costs should be set aside.

The program to eliminate unlawful discrimination

  1. [18]
    The tribunal ordered Midlane implement a program to eliminate unlawful discrimination. Midlane submits that the order is inappropriate, given the tribunal did not find that any worker of Midlane contravened the Act.
  1. [19]
    The tribunal found that Outside Lane employed Mr Smeaton and that Midlane employed Ms Abbey[6]. It found that, if Mr Smeaton, Ms Abbey or both of them had been educated about their rights and responsibilities, this incident may have been avoided. I do not see how educating Ms Abbey about her rights and responsibilities could have prevented Mr Smeaton’s actions. The program, if any, should have been directed only to the employer of the perpetrator.

The relief

  1. [20]
    The tribunal found that the companies’ failure to acknowledge the incident exacerbated Ms Abbey’s loss[7]. Ms Abbey did not make that submission in her amended contentions. The only evidence to support the tribunal’s finding was Dr Mungomery’s view that the companies’ response had the potential to exacerbate Ms Abbey’s reaction to the incident[8]. If Ms Abbey herself did not refer to the exacerbation of her reaction, the tribunal erred in finding that she was so affected.
  1. [21]
    Outside Lane takes issue with an award of $80,000 for general damages. It says the tribunal did not give adequate reasons for assessing that amount. I agree. Although the tribunal refers to the comparators, the reasons for decision give no clue to how those comparators were applied or why $80,000 is an appropriate award.
  1. [22]
    The tribunal found that Ms Abbey was incapable of employment from the date of the incident until 30 June 2015. Outside Lane submits this finding is against the weight of the evidence. Outside Lane’s submission depends, to a large degree, on the tribunal’s findings about Ms Abbey’s credibility. I have already found that the tribunal inadequately explained why Ms Abbey’s evidence should be preferred over other witnesses. For that reason, the tribunal’s finding about Ms Abbey’s employment prospects is also tainted.

Conclusion

  1. [23]
    To the extent that the grounds for the application before me are mixed fact and law, leave to appeal is granted. The appeal is allowed. The decision of 29 August 2014 is set aside. The proceeding is remitted to the tribunal, constituted by a different member, for rehearing.

Footnotes

[1]  Pursuant to a non-publication order dated 27 February 2013, not their real names. I have adopted the pseudonyms give to the parties by the tribunal below.

[2]  Reasons for decision at [27].

[3]  [2004] FCAFC 189 at [71].

[4]  Reasons for decision at [71] and [72].

[5]  Reasons for decision at [73], [74], [76] – [81].

[6]  Reasons for decision at [142].

[7]  Reasons for decision at [118(b)].

[8]  Reasons for decision at [107].

Close

Editorial Notes

  • Published Case Name:

    Outside Lane Limited v Jones

  • Shortened Case Name:

    Outside Lane Limited v Jones

  • MNC:

    [2015] QCATA 183

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    24 Dec 2015

Appeal Status

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

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