QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Noble v Whitelock & Ors [2020] QIRC 069 

PARTIES:	
	Noble, Charlotte
(Complainant)

v

Whitelock, Rod
(First Respondent)

&

Motton, Brett 
(Second Respondent)

&

Toowoomba Motors Pty Ltd 
(Third Respondent) 
	
CASE NO:
	AD/2019/119 
	
PROCEEDING:
	Referral of a complaint 
	
DELIVERED ON:
	8 May 2020
	
HEARING DATE: 
	11 March 2020 
	
MEMBER:

HEARD AT:	O'Connor VP 

Brisbane

ORDERS:
	1.	Pursuant to s 175(2) of the Anti-Discrimination Act 1991 (Qld) I permit the matters predating May 2018 to be included within the claim.   
	
CATCHWORDS:	ANTI-DISCRIMINATION–DISCRIMINATION IN THE WORKPLACE – time limits on referred complaints – discretion to accept complaints outside time limits – where some complaints were made more than 1 year after the alleged contravention – whether on the balance of fairness it is reasonable to include complaints – relevant considerations 
	
LEGISLATION:

CASES:	Anti-Discrimination Act 1991 (Qld) s15, s119, s129, s175 
Fair Work Act 2009 (Cth) s 372 

Buderim Ginger v Booth (2003) Qd R 147; [2002] QCA 177
Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465
Donchi v Broadhead & AMP Shopping Centres Pty Ltd [2001] QADT 14 
Hopper v Mount Isa Mines Ltd and others [1997] QADT 3 
Lucic v Nolan [1982] FCA 232; 45 ALR 411
Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4
Singh v State of Queensland [2015] QCAT 318
Wong v Medical Board of Queensland & Ors [2006] QADT 41
	
APPEARANCES:	Ms K Khamsone of Holding Redlich 

Mr W Ash of Mills Oakley 
	
Reasons for Decision

[1]	Charlotte Noble commenced as a Used Vehicle Sales Supervisor at Toowoomba Motors Pty Ltd on 13 February 2017. She reported to Rod Whitelock, the Used Vehicle Sales Manager and Brett Motton, the Dealer Principal.

[2]	On 23 May 2019 a complaint was filed with the Anti-Discrimination Commission (the pre-cursor to the Queensland Human Rights Commission) setting out details of her sexual harassment complaint for the period March 2017 to 26 February 2019. 

[3]	The complaint referred by the QHRC are as follows:

(a)	the Complainant was subject to sexual harassment by her manager, Mr Whitelock, while employed by Toowoomba Motors Pty Ltd ("Toowoomba Motors") in contravention of s119 of the Anti-Discrimination Act 1991 (Qld)("the Act");
(b)	the Complainant was discriminated against in the work area on the basis of her sex in contravention of s15 of the Act;
(c)	the Complainant has been victimised in contravention of s129 of the Act.

[4]	The question before the Commission is whether the Tribunal should exercise its discretion under s175 of the Act to deal with the out-of-time allegations. Section 175 provides as follows:

(1) 	[One year after contravention ends] The Tribunal must accept a complaint that is referred to it by the Commissioner, unless the complaint was made to the Commissioner more than one year after the alleged contravention of the Act. 
(2) 	[Tribunal may deal with complaint] If the complaint was made more than one year after the alleged contravention, the Tribunal may deal with the complaint if the Tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.
[5]	It is not in dispute that the elements of the complaint that are out of time relate to the events which are said to have occurred one year prior to the complaint being filed, namely the period prior to 23 May 2018. It is contended by the Complainant that she was subjected to conduct on a regular and daily basis and that some of the conduct occurred on multiple occasions.

[6]	The conduct sought to be excluded is set out in the referral in the following terms:

	March 2017 – April 2018 

Rod Whitelock made comments of a sexual nature about me and other employees on a regular and daily basis including about female employees' breasts, underwear and sexual attractiveness. For example:

•	he asked female staff to arrange for him to "hook up" with their friends 

•	he suggested that I should get naked in the bathroom with other female staff

•	he said he had had sex with or "slammed" other women in the office

•	on one occasion he pointed to a location where he said he had had sex with another female employee and said it should have been me that he'd had sex with 

In response to my requests for him to stop this kind of behaviour he said he would "have his way" with me and that I would "give in to him eventually". Rod Whitelock physically cornered me in the office toilet and storage room and said words like "let's go for a quick one now" and "I'm going to bend you over here". 

	On a number of occasions Rod Whitelock grabbed my hips.

On one occasion, he grabbed my legs while I was seated and lifted them up so that he could see up my dress.

On one occasion, Rod Whitelock sat on top of me with his legs straddled over me while I was seated.

On many occasions Rod Whitelock followed me to the toilet and tried to unlock the toilet door, and on one occasion threatened to take photos of me in the toilet (March 2018). 

	May 2018

Rod Whitelock used liquids to mimic ejaculating over me and other staff, male and female, and onto walls and glass doors in front of me and other staff. 

[7]	The Complainant's submission as to why the Tribunal should exercise its discretion to allow the out-of-time complaints can be summarised as follows:

(a)	The Complainant was employed for approximately two years by Toowoomba Motors and the alleged contraventions occurred during a relatively finite period;

(b)	The complaint regarding the out-of-time allegations are 14 months out of time but are proximate in time to other in-time allegations 

(c)	The primary complaint relates to alleged sexual harassment by Mr Whitelock with the primary witnesses to the harassment likely to be Mr Whitelock and the Complainant;

(d)	The out-of-time allegations are similar to the in-time component of the complaint with the allegation being that the sexual harassment commenced within the first month of her employment at Toowoomba Motors. It is submitted that in those circumstances, there is no basis to distinguish the out-of-time allegations of sexual harassment and those allegations that are within-time;

(e)	The witnesses in relation to both the in-time and out-of-time allegations are likely to be the same;

(f)	The case before the Tribunal is not one which seeks to add fresh complaints at a late stage the nature of which the Respondents have no notice of; and

(g)	There is no significant impact on costs, efficiency or length of hearing if the out-of-time matters are accepted.

[8]	The Respondents oppose the exercise of the discretion to deal with the out-of-time allegations. They seek an order dismissing the complaint to the extent that it concerns incidents alleged to have occurred before 23 May 2019.

[9]	In considering a referred complaint, the Tribunal has the functions and powers prescribed by the Anti-Discrimination Act 1991 including the power to determine whether it will deal with a complaint made more than 1 year after the alleged contravention of the Act. As was observed by Boddice S.C. (as his Honour then was) in Wong v Medical Board of Queensland & Ors:
In my view, a proper reading of s.138 and s.175 of the Act makes clear that the discretions in each section are separate and independent discretions. This interpretation is consistent with the observations in GCE –v- Anti-Discrimination Commissioner. 
That being so, the fact that the Commissioner, pursuant to s.138 of the Act, exercised a discretion to accept the complaint does not prohibit the Tribunal from itself considering afresh whether to deal with the complaint. The Tribunal is bound to exercise its own discretion, pursuant to s.175 (2) of the Act. In exercising this discretion, the Tribunal is not bound by the decision made by the Commissioner. 
[10]	In determining whether grounds exist to exercise the discretion under s.175(2) of the Act in favour of the Complainant, it is relevant to consider:

(a) 	the length of the delay;
(b) 	any explanation by the Complainant for the delay;
(c)	any prejudice to the Respondent, should the discretion be exercised in the Complainant’s favour;
(d) 	any prejudice to the Complainant, should the discretion not be exercised in the Complainant’s favour;
(e) 	whether there is a lack of merit to the complaint

Length of Delay
[11]	Some of the acts said to comprise the course of conduct occurred nearly fourteen months before the complaint was made, but some are only slightly out of time. By way of example, the claim for May 2018 (although not particularised) is, at worst, only days or weeks out of time.

	Explanation for Delay

[12]	The Complainant's affidavit sworn on 30 March 2020 gives some explanation for the delay. The Complainant deposes that she was made redundant on or about 26 February 2019. The letter of Brett Motton of 26 February 2019 advises that the position of Used Vehicle Sales Supervisor was made redundant. The Complainant was offered the position of Business Manager Used Vehicle Sales on her current pay and conditions. Since 27 February 2019 she has been unfit for duties because of her mental health. 

[13]	The Complainant engaged solicitors on 5 March 2019 and was given advice on her employment and options to pursue. On or about 7 March 2019 the Complainant was advised of the option to pursue a sexual harassment complaint and the 12-month limitation applicable to complaints under the Act. She pursued a WorkCover claim and a claim under the Fair Work Act for adverse action and discrimination. The Complainant lodged a complaint with the ADCQ on 23 May 2019. Her application for Workers' Compensation was accepted by WorkCover on 5 June 2019. On 1 July 2019, the Complainant attended on Rachel Donnelly, a Clinical Psychologist. In her report of 15 September 2019 Ms Donnelly opined that the Complainant's symptoms meet the criteria for a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood.  

[14]	The Respondents argue that there is no satisfactory explanation by the Complainant for the delay in bringing the complaint within time. They submit that the reason for the delay was one of the Complainant's own making. The Complainant pursued other causes of action including a WorkCover claim and an application to the Fair Work Commission pursuant to s372 of the Fair Work Act 2009. It is submitted that the Fair Work Commission matter was abandoned in favour of pursuing a complaint with the QHRC. 

[15]	In this regard, the Respondents make reference to Wong v Medical Board of Queensland & Ors where the tribunal said:

In my view, the Complainant made a deliberate choice to pursue certain avenues and to not pursue, within the appropriate period, redress pursuant to the Act. In reaching this conclusion, I accept that the Complainant was entitled to pursue whatever avenues of redress she wished, and in whatever order. However, that choice is a relevant factor when determining whether on the balance of fairness the Tribunal should hear the Complainant in relation to yet a further avenue of redress, notwithstanding that the matter of complaint occurred more than 12 months prior to the complaint being made.
[16]	It is not the case that the Complainant did not make a complaint (although denied by the Respondents) or seek some form of redress. 

[17]	Buderim Ginger v Booth, was decided in the context of the exercise of a discretion under section 138 of the Act and the determination of whether 'good cause' had been shown. In determining that question, factors such as: the reason why the complaint was not made within time; the extent of the delay in its being brought forward; and whether accepting the complaint late would occasion prejudice to the Respondent, will often feature prominently. Atkinson J (with which de Jersey CJ and McPherson JA agreed) wrote:
Although it is not essential to show that there is a reason for and justification for the delay in order to show good cause, such a consideration is always relevant to such a decision. In forming an opinion that the Complainant has shown good cause, the Commissioner is not fettered by rigid rules but must take into account all of the relevant circumstances of the particular case such as the length of the delay; whether the delay is attributable to the acts or omissions of the Complainant or his or her legal representatives, the Respondent, or both; the circumstances of the Complainant; whether there has been a satisfactory explanation for the delay; and whether or not the delay will cause prejudice to the Respondent.
de Jersey CJ also wrote:

While the claim which the Complainant relevantly advanced related directly to unpaid long service leave payments, the circumstances which based that claim were at the forefront of the Complainant’s approaches and enquiries, and it was those circumstances which Ms Johnston eventually suggested may have involved unlawful discrimination. In my respectful view, the particular circumstance that the Complainant did not, for two years, advance, in terms, that specific claim of discrimination, did not in these circumstances mean that “good cause” could not have been shown. 

In my view there was evidence from which the Commissioner could reasonably have been satisfied that the Complainant had shown “good cause” for acceptance of the complaint after the prescribed 12 month period. The Commissioner expressed her conclusion in these terms:
	
'Mr Sealy has provided extensive documentation demonstrating that he sought to have his concerns dealt with through other avenues but was not informed of the possibility of taking up the matter with the Commission until he sought advice from Ms Zrinka Johnston … I do not accept that Mr Sealy “chose not to investigate how to remedy” … his complaint. It appears that he has sought to investigate how to resolve his matter but not necessarily in the right direction. In my view Mr Sealy has provided a reasonable explanation for the delay, particularly in light of the Complainant’s medical condition and the further claim of delay in exhausting other avenues of redress.'

Those matters, together with the absence of prejudice to the Respondent should the complaint be accepted, amounted to evidence from which the Commissioner could reasonably have been satisfied that “good cause” was shown.

[18]	Hopper v Mount Isa Mines Ltd and others was a case that involved persistent sexual harassment and sex discrimination against a female apprentice diesel fitter mechanic at Mt Isa Mines Limited (MIM). The Complainant gave evidence that from about September 1992 until her resignation in April 1994, she was the subject of sexual harassment and discrimination. While it was not continuous, it was persistent throughout that period. The Respondents were given leave to amend their points of defence to claim that certain parts of the complaints were outside the jurisdiction of the Tribunal because no complaint had been lodged with the Anti-Discrimination Commission within one year of the events alleged to have occurred. Atkinson P wrote:

If the complaint was made more than one year after the alleged contravention, the Tribunal may deal with the complaint if the Tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.

In determining whether or not it is fair to the parties that this complaint should be heard, I take note of the fact that the events in question happened over a period of two years, and during that time Ms Hopper was still at the same workplace and hopeful that the discrimination and sexual harassment would end. In the circumstances, it is reasonable that she made no complaint until she left the employment of Mt Isa Mines, and since MIM was able to call Christian Manning, who was the apparent perpetrator of the first contravention of the Act, it has not been put to any great disadvantage. 

As a very large company, it has comprehensive records going back many years and so was not in a situation where any important documents had been lost or mislaid, nor is there any evidence that it was unable to contact any relevant witnesses. Since there was no evidence of actual prejudice to any of the Respondents by the delay, on balance I find that it is reasonable to deal with all of the complaints made by Ms Hopper. Furthermore, I agree with the submission made on behalf of the Complainant that the sex discrimination and sexual harassment were continuing in nature, and it is not a correct approach to look at each individual group separately.

[19]	The Respondents contend that there is an unexplained period of time between the abandonment of the application before the Fair Work Commission and the commencement of the proceedings under the Anti-Discrimination Act. In the affidavit of 30 March 2020, the Complainant deposes that the Fair Work Commission file was closed on 17 April 2019. Subsequent to that, she took further legal advice and decided to file a Workers' Compensation claim. That claim, which was largely prepared by the Complainant, was filed with WorkCover on 29 April 2019. During this period the Complainant's accrued sick leave came to an end; she was continuing to suffer from ongoing stress and anxiety; was finding the legal processes stressful; and was concerned about her legal costs.

[20]	I do not accept the submission that there is an unexplained period of time between the abandonment of the application before the Fair Work Commission and the commencement of the proceedings under the Anti-Discrimination Act. The Complainant has, in my view, explained the delay in filing the complaint with the ADCQ. Whilst it is correct that the Complainant has pursued various forms of redress, I do not consider that that approach is of such a nature that she should be denied the ability to have the pre May 2018 matters dealt with on their merits.

Prejudice
[21]	The prejudice that will flow to the Complainant is her inability to pursue the complaints which are said to have occurred between March 2017 and May 2018. 

[22]	In terms of the Respondents, it must be presumed that some prejudice will be occasioned by them if leave is granted by reason of the fact that the Respondent will be denied the freedom from liability which the time limit otherwise affords.

[23]	The Respondents sought to raise in their written submissions and during oral argument an inference of prejudice which could flow should the discretion be exercised in favour of the Complainant. However, the Respondents have not adduced any evidence to suggest that they will suffer any actual prejudice. They contend that the out of time complaints have not been properly particularised, that they do not know who might be called as witnesses and whether those witnesses might be available. 

[24]	In support of their contention that the admission of the pre-May 2018 complaints would be prejudicial, the Respondents referred the Tribunal to the decision of Singh v State of Queensland, a decision of Senior Member Endicott. In that case, the complaint by Mr Singh comprised some 102 incidents of racially motivated comments allegedly made over a period between 25 February 2009 and 26 June 2013. The length of time of the delay, was more than four years out of time. The Respondents submission draw my attention to the observation of Senior Member Endicott where she observes:

I find that on balance of fairness to all the parties, the decision made by Mr Singh not to make any contemporaneous complaint about 102 alleged incidents of discretionary behaviour should be upheld.

[25]	Singh is clearly distinguishable. That case involved a significant number of allegations demonstrating a sustained pattern of discrimination which it was alleged had a cumulative effect on him between 2009 and 2013. Senior Member Endicott was critical of his failure to complain. She found that he made a conscious decision not to complain about the behaviour of the Respondent. He did not produce any credible evidence that he had been incapable of deciding not to lodge an anti-discrimination complaint prior to consulting a psychologist in 2014. The prejudice said to flow to the Respondents was the capacity to prove whether the incidents did occur in circumstances where some incidents are said to relate to events more than six years prior to the filing of the complaint. 

[26]	Whilst the onus of satisfying the Tribunal to exercise the discretion to extend time remains on the Complainant, there is also an onus on the Respondents to raise factors against the exercise of the discretion. 

[27]	Gibbs J in Campbell v United Pacific Transport Pty Ltd wrote:

`It is for the Respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'
[28]	Having considered the matter, I am not persuaded by the submissions of the Respondents that the circumstances of this particular case will give rise to actual prejudice should the discretion be exercised in favour of the Complainant. 

Merit to the complaint
[29]	The sole submission made by the Respondents on the issue of merit is contained in their submissions of 6 March 2020. In those submissions they say:

(a)	In relation to the conduct within the allegations that will not be denied by the first Respondent, we enclose the texts of 28 September 2018 and 16 November 2018.

(b)	As is apparent from the text messages, they are unlikely to constitute sexual harassment.

[30]	In Lucic v Nolan, Fitzgerald J was dealing with an application for an extension of time to review the decision of the Disciplinary Appeal Board. On assessing the merits of a case, his Honour observed:

It is neither necessary nor desirable, if indeed it would be possible, to enumerate the great variety of possibly material circumstances to be considered on an application for an extension of time. Nor, in my opinion, is it possible to identify particular circumstances or classes of circumstances which must automatically be excluded from consideration. Each individual case should be dealt with individually, giving due weight to prior decisions and what they reveal of judicial attitudes …Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in an appropriate case some obvious strength or weakness in an applicant's case or matters which might justify the refusal of relief, if the Court has a discretion to do so where a ground for relief is made out.
[31]	It is difficult, if not impossible in the present circumstances to determine the relative merits or otherwise of the Complainant's case.  This is particularly so in the absence of the statement of facts and contentions.

Conclusion
[32]	The Tribunal has the capacity to deal with complaints made more than one year after the alleged contravention of the Act. The Tribunal may deal with the complaint if the Tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so. 

[33]	What is alleged is a pattern of behaviour which commenced shortly after the Complainant commenced her employment at Toowoomba Motors and continued until she ended her full-time employment. The alleged discrimination and harassment were "continuing in nature". 

[34]	This is not a case where there has been a failure by the Complainant to commence proceedings within time. Rather it is a case where some elements of the complaint are out-of-time while others are within time. 

[35]	The Complainant contends that she made complaints to Brett Motton, the Dealer Principal. That allegation is denied. In explaining the delay, the Complainant sought legal advice as to her options. She pursued other causes of action including a WorkCover claim and an application to the Fair Work Commission pursuant to s372 of the Fair Work Act 2009. The pursuit of other options are not of itself a sufficient basis upon which I should refuse to exercise the discretion in her favour. The length of the delay is not excessive in the context that the matters complained of allegedly occurred throughout the Complainants employment. I am satisfied that the Complainant has provided an explanation for the delay. 
 
[36]	There is no evidence before the Tribunal that it would not be possible to call relevant witnesses or to adduce evidence to defend the claim. Whilst I accept that the onus of satisfying the Tribunal to exercise the discretion to extend time remains on the Complainant, the Respondents have not advanced any argument or produced any evidence of actual prejudice consequent upon the delay. 

[37]	I respectfully adopt the reasoning of Atkinson P in Hopper v Mount Isa Mines Ltd and others that the correct approach is not to examine each alleged incident or episode in isolation but rather view it in the context in which the behaviour is said to have occurred. 

[38]	To decline to exercise the discretion at such an early stage in the hearing, particularly before the Statements of Facts and Contentions have been filed would deprive the Complainant of the opportunity to have a just determination of her complaint which alleges a contravention of the Act. 

[39]	On the balance of fairness between the parties, it would be reasonable to permit the matters predating May 2018 to be included within the claim. 

Order
1.	Pursuant to s 175(2) of the Anti-Discrimination Act 1991 (Qld) I permit the matters predating May 2018 to be included within the claim.