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

Date: 25 October 2022
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: A/Senior Member Fitzpatrick
Human Rights Act 2019 (Qld) Sections: ss 4(f), 5(2)(a), 15(1), 31, 48
Rights Considered: Right to recognition and equality before the law; Right to a fair hearing
Other Legislation: Anti-Discrimination Act 1991 (Qld), ss 6, 7, 8, 9, 10, 11, 118, 205
Keywords: Discrimination

This case concerned allegations of sexual harassment, discrimination and victimisation under the Anti-Discrimination Act 1991 (Qld). Whilst no particular breach of the Human Rights Act 2019 (Qld) was alleged, the Tribunal acknowledged its obligations under sections 4(f) and 48 of the Human Rights Act 2019 (Qld) and considered itself bound to consider the extent to which the applicant’s human rights were affected by this proceeding. In particular, the Tribunal considered the applicant’s right to recognition and equality before the law (section 15(1)) and the right to a fair hearing (section 31). On account of the hearing having been conducted in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which ensures a fair hearing by providing the opportunity for the applicant to be heard and have his evidence and submissions taken into account, Senior Member Fitzpatrick was satisfied that the Tribunal had discharged its obligations under s 5(2)(a) of the Human Rights Act 2019 (Qld). The applicant was a patron of a Council Library, which the second respondent was an employee of: at [1] and [2]. The applicant alleged that he was, inter alia, subject to direct and indirect discrimination and 40 instances of victimisation: at [3]. The applicant asserted that the Council, the first respondent, was vicariously liable for the second respondent employee’s conduct, by reason of its status as employer: at [4].

The discrimination complaint stemmed from the perceived mishandling of a sexual harassment complaint against the second respondent by the applicant: at [32]. The applicant complained that he was discriminated against because he was a gay man and also on the basis of his sex: at [34]. This complaint was made to the Queensland Human Rights Commission and was accepted as being sex discrimination and sexuality discrimination: at [35]. The applicant referred generally to the Human Rights Act 2019 (Qld) in his closing submissions before the Tribunal, however, his initial complaint to the Human Rights Commission did not allege any contravention of the Act, nor was his complaint to the Tribunal amended to cover any such allegations. The Senior Member did not deal with the issue further, but considered the Tribunal’s obligations under the Human Rights Act 2019 (Qld), in making the decision: at [99] and [100].

The Senior Member stated that the Tribunal, in exercising a judicial power by way of enforcing existing legal rights, was bound to apply the Human Rights Act 2019 (Qld) to the conduct of the proceedings where the nature of the Senior Member’s judicial function involves applying or enforcing human rights which relate to that function. In particular, Senior Member Fitzpatrick identified the applicant’s right to recognition and equality before the law (section 15(1)) and the right to a fair hearing (section 31). She found that a fair hearing was ensured by the applicant’s being heard in the proceeding and the taking into account of his evidence and submissions. Further, the hearing was conducted in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which ensures a fair hearing: at [103]. As such, the Tribunal discharged their obligations under s 5(2)(a) of the Human Rights Act 2019 (Qld).

Visit the judgment: Gorgievski v Gold Coast City Council & Anor [2022] QCAT 365