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State of Queensland (Queensland Police Service) v Workers' Compensation Regulator[2021] QIRC 366

State of Queensland (Queensland Police Service) v Workers' Compensation Regulator[2021] QIRC 366

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Anor [2021] QIRC 366

PARTIES: 

State of Queensland (Queensland Police Service)

(Appellant)

v

Workers' Compensation Regulator

(First Respondent)

And

Stretton, Neville

(Second Respondent)

CASE NO.:

WC/2018/150

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

27 October 2021

HEARING DATES:

SUBMISSIONS:

4, 5, 6, 20 August 2020

Appellant's closing submissions: 22 February 2021

Respondent's closing submissions: 9 March 2021

Appellant's closing submissions in reply: 24 March 2021

MEMBER:

HEARD AT:

Power IC

Brisbane

ORDERS:

  1. The appeal is dismissed.
  1. I will hear the parties as to costs.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – Psychiatric or psychological injury – whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where injury arises from management action – whether management action reasonable – appeal dismissed

STATUTES – ACTS OF PARLIAMENT – PUBLIC INTEREST DISCLOSURE – where appellant made a public interest disclosure or a purported public interest disclosure – where appellant was given public disclosure status under the Public Interest Disclosure Act 2010 (Qld) –– whether conducting an investigation to consider public interest disclosure constitute liability – the Public Interest Disclosure Act 2010 (Qld) does not prevent conducting of investigation

LEGISLATION:

Crime and Corruption Act 2001 (Qld), s 15

Police Service Administration Act 1990 (Qld)

Public Interest Disclosure Act 2010 (Qld), ss 13, 29, 36, 41, 45, 66, 67 and Sch 4

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32

CASES:

Allwood v Workers' Compensation Regulator [2017] QIRC 088

Charters Towers Regional Council v Workers' Compensation Regulator [2019] QIRC 027

Davis v Blackwood [2014] ICQ 009

Flori v Winter [2019] QCA 281

George v Rockett (1990) 170 CLR 104

Kuenstner v Workers' Compensation Regulator [2016] QIRC 83

WorkCover Queensland v Kehl (2002) 70 QGIG 93

APPEARANCES:

Mr C. Massey of Counsel directly instructed by the Appellant

Mr C.J. Clark of Counsel directly instructed by the First Respondent

Mr D.L.K. Atkinson of Counsel, instructed by Sciacca Lawyers for the Second Respondent

Reasons for Decision

  1. [1]
    The State of Queensland (Queensland Police Service) ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the First Respondent') dated 23 July 2018, to accept an application for compensation by Sergeant Neville Stretton ('the Second Respondent') in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').
  1. [2]
    The First Respondent accepted the Second Respondent's claim that he suffered a psychiatric or psychological injury whilst employed by the Appellant at the Runaway Bay Police Station.
  1. [3]
    The primary question to be determined in this appeal is whether the Appellant suffered a personal injury within the meaning of s 32 of the Act. At the date of injury, s 32 defined the meaning of an 'injury' in the following terms:
  1. Meaning of injury
  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if—

…

  1. (b)
    for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

…

(5) Despite subsection (1)…, injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—

  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;
  1. [4]
    The onus is on the Appellant to satisfy the Commission, on the balance of probabilities, that the Second Respondent's application for compensation did not satisfy s 32 of the Act and hence was one for rejection.[1]
  1. [5]
    The Appellant does not dispute that the Second Respondent was a worker who suffered a psychiatric or psychological injury arising out of, or in the course of, his employment, and that his employment was the major significant contributing factor to the injury. The Appellant's claim is that the personal injury arose in circumstances set out in s 32(5) of the Act, that being reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, and is therefore not compensable.

Background

  1. [6]
    The Second Respondent worked at the Runaway Bay Police Station from 2010 to 2020 as a shift supervisor under the Officer-in-Charge ('OIC'), Senior Sergeant ('Snr Sgt') Murray Underwood.
  1. [7]
    In or about June 2015, Senior Constable ('SC') Tracey Barnes transferred from the Surfers Paradise station to work at the Runaway Bay Station.
  1. [8]
    On 4 May 2016, the Second Respondent lodged a formal complaint with the Appellant's Ethical Standards Command ('ESC'), outlining his concerns that SC Barnes was affected by alcohol and drugs whilst on duty.
  1. [9]
    The complaint was referred to the Crime and Corruption Commission (Queensland) ('CCC') where it was assessed as a public interest disclosure ('PID') under the Public Interest Disclosure Act 2010 (Qld) ('PID Act'). As the original notifier, the Second Respondent was given public interest disclosure status. Ultimately, the complaint was not substantiated and the investigation by the ESC closed.
  1. [10]
    On 15 June 2016, a formal complaint was made by SC Barnes against the Second Respondent which related to an ongoing workplace harassment dispute. The complaint included an allegation that the Second Respondent had misused his authority by intentionally including in his complaint email of 4 May 2016, material aimed at meeting the evidentiary requirement of a reasonable suspicion for a targeted drug and alcohol test, and that he had excluded material providing an innocent explanation for SC Barnes' conduct.
  1. [11]
    SC Barnes' complaint was referred to the CCC where it was assessed as an allegation of corrupt conduct. The CCC referred the complaint back to the Appellant for investigation. Detective Snr Sgt David Cousins investigated the SC Barnes' complaint and completed two separate reports:
  1. (a)
    CSS2016/00740 – allegation that the Second Respondent caused a detriment to SC Barnes by excluding material of direct relevance in an email complaint dated 4 May 2016 relating to her suspected misuse of prescription drugs, illicit drugs and/or alcohol abuse ('the email matter'); and
  1. (b)
    CSS2016/01000 – allegation that the Second Respondent engaged in negative workplace behaviour towards various members of the Gold Coast Police District ('the other matter').
  1. [12]
    On 17 October 2016, the ESC determined there was sufficient evidence that SC Barnes' complaint against the Second Respondent should proceed to a disciplinary hearing.
  1. [13]
    On 5 June 2017, the Second Respondent filed an application for workers' compensation claiming that he had suffered an injury.
  1. [14]
    On 20 May 2019, the complaint by SC Barnes was finalised on the basis that there was insufficient evidence to establish that the Second Respondent had engaged in misconduct in respect of his complaint that SC Barnes had been affected by alcohol and drugs whilst on duty and consequently, the email matter was dismissed. However, the other matter was upheld on the basis that there was sufficient evidence to substantiate that the Second Respondent had engaged in negative workplace behaviour towards members of the Gold Coast Police District, including SC Barnes.

Appellant's Statement of Facts and Contentions

  1. [15]
    The Appellant's Statement of Facts and Contentions ('SOFC') state that the Second Respondent was a worker within the meaning of the Act who suffered a personal injury best described as 'anxiety disorder' and that this personal injury arose out of his employment and the employment was the major significant contributing factor to his injury.
  1. [16]
    The Appellant contends that the Second Respondent's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the Appellant in connection with the Second Respondent's employment in that:
  1. (a)
    on the Second Respondent's own account, the events that had a causal connection with his personal injury were the actions of the ESC in conducting an investigation into him;
  1. (b)
    the Second Respondent's complaint against SC Barnes was not a PID under the PID Act because the complaint did not, at law, involve an allegation of corrupt conduct; or, in the alternative
  1. (c)
    even if the Second Respondent's complaint about SC Barnes was a PID under the PID Act, that fact did not prevent the reasonable management action of the Appellant investigating the truth or accuracy of the disclosure made by the Second Respondent;
  1. (d)
    the cause of the investigation was a subsequent complaint by SC Barnes against the Second Respondent concerning the veracity of his complaint against her. SC Barnes' complaint was referred to the CCC where it was assessed as an allegation of corrupt conduct and referred back to the Appellant for investigation; and
  1. (e)
    the investigation of the Second Respondent was not a reprisal to his complaint about SC Barnes because the substantial cause of the investigation was the complaint by SC Barnes and a direction by the CCC to the Appellant to investigate the complaint.

Second Respondent's Statement of Facts and Contentions

  1. [17]
    The Second Respondent admits that there is a causal connection between his personal injury and the action of the ESC in conducting an investigation into him, and states for the purposes of clarity, that this connection relates to an investigation into a QP466 notification and a decision in the course of that investigation to proceed to a disciplinary hearing as stated in the application for compensation dated 30 May 2017.
  1. [18]
    The Second Respondent states that the Appellant's actions were not reasonable management action taken in a reasonably way in connection with the Second Respondent's employment for the following reasons:
  1. (a)
    If there was relevant management action, that action comprised, or alternatively included, an investigation of the Second Respondent and/or a decision to proceed to a disciplinary hearing with the Second Respondent, in relation to a QP466 notification dated 5 May 2016 and lodged with ESC of the Appellant by Snr Sgt Underwood and/or other workplace matters ('the Action');
  1. (b)
    the said Action was a significant stressor in that it involved allegations of dishonesty, misuse of police processes and a deliberate attempt to harm a fellow officer and caused the Second Respondent's anxiety disorder;
  1. (c)
    the Action was neither reasonable management action, nor taken in a reasonable way in that:
  1. (i)
    the Second Respondent's involvement in the making of the QP466 notification related to concerns which potentially related to 'corrupt conduct' or 'as substantial and specific danger to public health for safety' and was a PID for the purposes of the PID Act, so that the Second Respondent enjoyed the protections set out in ss 36, 45 and 41 of the PID Act;
  1. (ii)
    the Second Respondent's said involvement was classified as a PID by the CCC in May 2016 and that classification was immediately made known to the Appellant and the Second Respondent;
  1. (iii)
    in accordance with s 29 of the PID Act, the Appellant recorded the Second Respondent's details in its PID Act register on or about 6 May 2016, and that registration was never rescinded or otherwise revoked, nor was the Second Respondent invited to provide submissions in relation to such recission or revocation;
  1. (iv)
    the Appellant informed the Second Respondent in writing on 23 May 2016 that the allegation contained in the QP466 notification 'had been classified as a "public interest disclosure" [and that] consequently your details have been recorded as per section 29 of the Act', and the Appellant never informed the Second Respondent prior to the Action that it had rescinded, or was considering the recission, of that classification;
  1. (v)
    prior to taking the Action, the Appellant had not properly considered whether or not the protection apparently afforded by the PID Act, and/or its classification of the Second Respondent, was ineffective or otherwise wrong at law;
  1. (vi)
    if, as alleged by the Appellant (and which is not admitted), the CCC assessed a complaint by SC Barnes as involving 'corrupt conduct' in or about June 2016, the Appellant took no steps to ascertain whether or not that assessment was well-made;
  1. (vii)
    the investigation leading to the decision to proceed to a disciplinary hearing was not conducted competently or impartially and the evidence, properly considered, showed that in relation to the QP466 notification, there was no case to meet and/or there was always insufficient evidence to warrant a conviction;
  1. (viii)
    when the Second Respondent provided details of the complaint to Snr Sgt Underwood:
  1. Snr Sgt Underwood did not caution the Second Respondent about the adequacy of the particulars provided by him in relation to the complaint; and/or
  1. Snr Sgt Underwood did not ask for further particulars from the Second Respondent about his complaint; and
  1. (ix)
    if (which is not admitted) the CCC directed the Appellant to investigate the complaint by SC Barnes, the Appellant failed to do so having early and proper regard to the Second Respondent's PID Act classification.

Stressors relevant to the injury

  1. [19]
    An issue in contest is whether the Second Respondent's injury was caused by the Appellant's investigation into the email matter, the Appellant's investigation into the other matter or both matters.
  1. [20]
    The Appellant's contention is that the Second Respondent's injury was caused by the Appellant's investigation into both matters, as evidenced by the following:
  1. (a)
    The Second Respondent did not see a doctor until 19 May 2017, which was well after the second interview on 19 January 2017;[2]
  1. (b)
    the relatively contemporaneous notification of the injury submitted by the Second Respondent identified that the cause of the stress was the 'whole occurrence of being investigated';[3]
  1. (c)
    the WorkCover Communication Report records the treating general practitioner recognised on 4 January 2018 that the Second Respondent was stressed because of the charge of misconduct and there was bullying in that, specifically:

…main one that he speaks about is the stress at work being caused and issue where he had concerns about a colleague which he reported and it has backfired on him and he is stressed because he is being charged with misconduct and there is also bullying in that situation.[4]

  1. (d)
    the first interview occurred on 4 August 2016 and the Second Respondent did not report any stress after that interview. The stress only manifested itself after the Second Respondent became aware that he was the subject of a series of substantial allegations to which there was no sensible defence.[5]
  1. [21]
    The Appellant submits that although the Second Respondent states that the injury was caused by the 'investigations associated with the [email matter]', it appears from the balance of the submissions, that the Second Respondent concedes that it was reasonable for an investigation into those matters to be conducted. It appears the substance of the Second Respondent's position is that the investigation was not conducted reasonably.
  1. [22]
    The Second Respondent submits that his evidence confirmed that his injury was a consequence of the email matter, specifically:[6]
  1. (a)
    he appreciated at an early point in relation to the email matter that it would be extremely serious to be charged with behaving dishonestly against a fellow police member by using the disciplinary system in bad faith;[7]
  1. (b)
    in particular, he was gutted on 4 August 2016 when he was told that his version of events had not been corroborated by any other officers;[8]
  1. (c)
    after the interview, he found himself arguing with his wife, having sleepless nights, waking up early and staring at the ceiling, wondering how he might have done things differently, not concentrating at work, becoming fatigued and crying;[9]
  1. (d)
    he was extremely shocked and anxious when he realised in the course of the interview that he was being very forcefully accused of this matter;
  1. (e)
    the other matter concerned negative workplace bullying and, whilst it caused him some embarrassment, there was no issue about a severe sentence and it was not really a source of stress;[10]
  1. (f)
    he had some experience previously in this area and expected to receive a reprimand or, at worst, a small fine;[11]
  1. (g)
    at the conclusion of the second interview, the Second Respondent states in January 2017, Detective Cousins told him that he would be charged with misconduct over the email matter and that the charge would be going to the Assistant Commissioner ('AC');[12]
  1. (h)
    Detective Cousins agreed that he may have told the Second Respondent in January 2017, at the end of the interview, that he was being referred to the AC because by that time, decisions to that effect had been made;[13]
  1. (i)
    Detective Cousins agreed that by telling the Second Respondent the rank of the prescribed officer, he was effectively leaving demotion as an option;[14]
  1. (j)
    by this stage, Detective Cousins had not provided the Second Respondent with the full brief and he did not have an opportunity to see what his colleagues actually said until he received it on 22 November 2017;[15]
  1. (k)
    the Second Respondent explained that it was the email matter which caused his anxiety to increase significantly where he started picking at his skin, he did not listen to conversations at home, and he became pre-occupied with the charge;[16]
  1. (l)
    AC Codd agreed that it would be extremely concerning to be charged with the email matter;[17]
  1. (m)
    Detective Cousins also agreed that it was a 'huge moment' to be told that you are going before an AC knowing that demotion is within the range;[18] and
  1. (n)
    there is no suggestion that the second set of charges was particularly concerning or that the eventual penalty of $260.00 was unpredictable.[19]
  1. [23]
    The first question for determination is whether the Second Respondent's injury was caused by the investigation into the email matter, the investigation into the other matter, or both matters.
  1. [24]
    The first interview occurred with the Second Respondent on 4 August 2016 and the second interview occurred on 19 January 2017. It appears from the limited medical evidence that the Second Respondent first visited a doctor in May 2017. The consultation notes recorded by Dr Rachel Maclachlan on 22 May 2017 state the following:

…

He has major stress at work

Making him difficult to live with (wife has tld [sic] him)

Was suspicious that a colleague was using substances

Had enough evidence to make a report

When did was given whistleblower status

The people above him did a drug test

That person not been back to work

Now he has been told that he may be charged with misconduct as not reasonable suspicion for the claims

He is very stressed re this

They have said not protected by the whistleblower legislation?[20]

…

  1. [25]
    The consultation notes recorded by Dr Maclachlan are clear and specifically identify the source of the Second Respondent's stress as being the email matter. The notes do not identify the claims regarding bullying and harassment by SC Barnes as playing any role in the Second Respondent's injury. The medical certificates provided by Dr Maclachlan state generally that the diagnosis is 'workplace stress and bulling'.[21]
  1. [26]
    The WorkCover Communications Report records notes from a discussion between a Claims Representative and Dr Maclachlan on 23 November 2017. The notes state the following:

…

What were the events that led Worker to seek treatment?

  • He was basically he whislteblew [sic] on a colleague and it has excalated [sic] from there, no dates or names mentioned.
  • The fact that this had happened and was told that he was likely that he would be charged with misconduct
  • Work problems are making his home life difficult.[22]

…

  1. [27]
    The WorkCover Communications Report records notes from a discussion between a Claims Representative and Dr Maclachlan on 4 January 2018. The notes state the following:

…

GP advised

- main one that he speaks about is the stress at work being caused and issue where he had concerns about a colleague which he reported and it has backfired on him and he is stressed because he is being charged with misconduct and there is also bullying in that situation.

- I would say this is the significant contributing factor.[23]

…

  1. [28]
    It is unclear whether the note that 'there is also bullying in that situation' refers to the Second Respondent's view that he was being bullied by the Appellant through the investigation process or that he was being investigated for bullying SC Barnes. On balance, it appears more likely that it refers to his perception that he was being bullied given Dr Maclachlan's reference to 'workplace stress and bullying' on the medical certificates.
  1. [29]
    In the Second Respondent's application for compensation dated 30 May 2017,[24] the Second Respondent provided significant detail in response to the question 'How did the injury happen?'. This detailed response described the process surrounding the email matter that led to the QP466 notification and outlined the Second Respondent's view that he was being subject to reprisal after reporting the suspected misconduct. It is clear from this response that the Second Respondent believed his stress to be solely a result of the email matter, as there is no reference to the broader investigation into SC Barnes' other allegations.
  1. [30]
    The Queensland Police Service Notification and Record of Incident[25] submitted by the Second Respondent reflected the details provided in the application for compensation. The context outlined involved the email matter and the subsequent investigation into this QP466 incident. Although the Appellant submits that the cause of stress was stated to be the 'whole occurrence of being investigated' it is clear that in context, the stressor was the investigation in relation to the email matter. The document states:

…

On 16 March 2017 I had a conversation with Superintendent HANLON at the Runaway Bay Police Station. I asked Superintendent HANLON as to what was happening with the misconduct allegation from the ESC investigator. HANLON Informed me that the matter was to be put before the AC for determination and it was 'imminent' that I was going to be served with misconduct paperwork. I informed HANLON that this whole occurrence of being investigated was causing me considerable stress and anxiety. This left me with no doubt that the ESC investigator and HANLON had no idea that my disclosure was registered in the registered of disclosures under the PIDA. I then informed HANLON of my status under the PIDA and what I was experiencing was in fact a reprisal under section 39 of the PIDA…[26]

  1. [31]
    I note the Second Respondent's evidence that he was 'gutted' on 4 August 2016 when he was told that his version of the lead up to the email matter had not been corroborated by any other officers[27] and that after the interview, he found himself arguing with his wife, having sleepless nights, waking up early and staring at the ceiling, wondering how he might have done things differently, not concentrating at work, becoming fatigued and crying.[28] The Second Respondent gave evidence that following the interview he was ruminating, having difficulty sleeping, scratching his skin and questioning himself.[29] The Second Respondent also gave evidence that whilst the broader investigation concerned workplace bullying and this caused him some embarrassment, there was no issue about a severe sentence and it was not really a source of stress.[30]
  1. [32]
    The Second Respondent gave evidence that he appreciated at an early point in relation to the investigation into the email matter that it would be extremely serious to be charged with behaving dishonestly against a fellow police member by using the disciplinary system in bad faith.[31] The Second Respondent states that at the conclusion of the second interview, Detective Cousins told him that he would be charged with misconduct over the email matter and that the charge would be going to the AC.[32] Detective Cousins agreed that he may have told the Second Respondent in January 2017, at the end of the interview, that he was being referred to the AC because by that time, decisions to that effect had been made.[33] Detective Cousins agreed that by telling the Second Respondent the rank of the prescribed officer, he was effectively leaving demotion as an option.[34]
  1. [33]
    After consideration of the application for compensation, the Queensland Police Service Notification and Record of Incident, the WorkCover Communications Report notes, the medical evidence and the evidence of the Second Respondent and Detective Cousins, I am satisfied that the investigation into the email matter was the stressor which resulted in the Second Respondent's injury. The evidence does not indicate that the investigation into the other matter with respect to SC Barnes' allegations of bullying and harassment contributed to the Second Respondent's injury in any significant manner.
  1. [34]
    On the basis that the injury was the result of the email matter, it is not necessary to consider whether the investigation into the other matter was conducted in a reasonable way.

Appellant's submissions

  1. [35]
    The Appellant's submissions regarding the investigation into the email matter can be summarised as follows:
  1. In 2015, the Second Respondent was informed that SC Barnes was suffering from scabies and in late 2015, he became aware that SC Barnes had been diagnosed with shingles;
  1. on 4 December 2015, the Second Respondent was informed by the OIC at the Runaway Bay Station that SC Barnes was shortly to make a formal complaint of bullying and harassment against the Second Respondent;
  1. in January 2016, the Second Respondent was tasked with conducting an internal investigation into whether SC Barnes had engaged in misconduct outside of duty. The Appellant submits that the Second Respondent admitted that he had adverse views about SC Barnes and was not able to bring an impartial mind to bear on the matter. The Appellant submits that at no time did the Second Respondent recuse himself from conducting the investigation or tell his supervisors that he should not conduct the investigation because SC Barnes was going to complain about him;
  1. the Appellant submits that on 26 February 2016, the Second Respondent became aware that SC Barnes had been diagnosed with Post Traumatic Stress Disorder ('PTSD') and had been prescribed anti-depressants. The Second Respondent was aware that SC Barnes' treating general practitioner had not raised any concerns of possible abuse of prescription or illicit drugs;
  1. from February to May 2016, the Second Respondent was responsible for rostering SC Barnes, during which time he continued to roster her for operational duties, including duties which required her to drive a vehicle and be equipped with a firearm, taser and baton;
  1. on 29 April 2016, the Second Respondent emailed the Appellant's Drug and Alcohol Coordinator Unit ('DACU'), seeking advice about how to deal with concerns about an officer under his control;
  1. on 4 May 2016, the Second Respondent had a telephone conversation with Ms Emma Clinch from DACU. During this conversation, the Second Respondent advised Ms Clinch of his concerns about SC Barnes, however, he did not provide any information about the personal difficulties or medical conditions that were afflicting SC Barnes. During this time, the Second Respondent also informed Ms Clinch that SC Barnes had association with outlaw motorcycle gang ('OMCG') associates. The Appellant submits this information was not necessary for any advice that the Second Respondent was seeking;
  1. on 4 May 2016, Ms Clinch sent the Second Respondent an email setting out some advice about the process for dealing with his concerns;
  1. on 4 May 2016, the Second Respondent sent an email to Inspector David Nixon, carbon copying Snr Sgt Underwood identifying his concerns with SC Barnes' performance and his suspicion that she may have been misusing either prescription or illicit drugs;
  1. the Appellant submits that despite identifying purportedly erratic behaviour and skin conditions, the Second Respondent did not advise Inspector Nixon that he was aware that SC Barnes:
  1. had been prescribed antidepressants;
  1. had been diagnosed with scabies;
  1. had been diagnosed with shingles;
  1. was in the midst of a significant neighbourhood dispute which was causing her substantial stress; and
  1. had not demonstrated any of the purported indicia for at least two months;
  1. the Second Respondent did not advise Inspector Nixon that the Second Respondent was expecting that SC Barnes was going to make a complaint of bullying and harassment against him;
  1. the Second Respondent kept no notes or records of the concerns expressed in his emails. He also took no steps to stop SC Barnes from operating a vehicle or carrying a service weapon whilst on duty;
  1. on 6 May 2016, Inspector Nixon sent the Second Respondent an email seeking the names of the other officers who had allegedly reported concerns with SC Barnes' conduct. This email indicated that action was likely to be taken in respect of SC Barnes. In response, the Second Respondent provided the names of officers who had allegedly complained to him;
  1. Inspector Scott MacQueen subsequently authorised an involuntary drug test on SC Barnes, the test was performed and the test results were negative;
  1. on 23 May 2016, the Second Respondent received an email from Snr Sgt Emma Lowe of the ESC advising that his email of 4 May 2016 had been administratively classified as a PID within the meaning of the PID Act;
  1. on 23 May 2016, the Second Respondent sent an email in response where he formally welcomed an investigation into SC Barnes' allegations against him. This formal invitation was never withdrawn;
  1. on 15 June 2016, SC Barnes made a range of complaints in respect of the Second Respondent's conduct in the workplace towards her. At the relevant time, SC Barnes was an officer of the Appellant and was under a statutory obligation to report suspected misconduct. These complaints were then expanded on in a statement provided by SC Barnes, and one of those complaints included an allegation that the Second Respondent's complaint that she was misusing or abusing drugs and/or alcohol was false and designed to cause her a detriment;
  1. SC Barnes' complaint concerning the Second Respondent was referred to the CCC where it was administratively assessed as 'corrupt conduct'. Shortly after this time, the Daily Assessment Committee referred SC Barnes' complaint for assessment. The allegation was assessed in accordance with the usual process and allocated to Detective Cousins for investigation;
  1. Detective Cousins gave evidence at length about the steps he took in investigating the allegations. Those steps involved collecting all of the documents, interviewing relevant witnesses, and when satisfied that the evidence gathered was consistent with the allegations, interviewing the Second Respondent;
  1. prior to the interview, the Second Respondent was informed of the nature of the allegations and the process that would be followed. He was permitted to have his union representative attend the interviews;
  1. at the conclusion of the first interview on 4 August 2016, Detective Cousins explained the three possible outcomes from his investigation. The Second Respondent was properly informed of the process that was to be adopted;
  1. on 4 September 2016, the investigation review into SC Barnes' complaint about the drug and alcohol complaint was finalised with a recommendation that the matter proceed to a disciplinary hearing before an AC on the basis that the evidence was capable of establishing the allegation;
  1. on 19 January 2017, the Second Respondent was again interviewed, with his union representative present, in respect of additional allegations of workplace bullying and harassment made by SC Barnes;
  1. during the second interview the Second Respondent informed Detective Cousins that he was suffering from stress which was unrelated to the investigation. At no time during the interview did the Second Respondent say that he was feeling stressed by the investigation;
  1. on 3 February 2017, the Second Respondent sent an email to Internal Witness Support stating that he had been advised that his conduct about the drug allegation had been referred to the AC for the Region. In this email, the Second Respondent also complained that he was being victimised for sending the email of 4 May 2016. This is the first time this complaint was raised;
  1. on 3 February 2017, Inspector Hobbs sent an email to the Second Respondent advising that because the matter was under investigation, he could not respond to the Second Respondent's claims of reprisal or victimisation, but that those matters should be raised in his disciplinary hearing;
  1. (aa)
    on 18 May 2017, the Second Respondent first attended upon his doctor and complained of stress. The medical records do not record the Second Respondent making any mention of the stressors disclosed to Detective Cousins previously;
  1. (bb)
    on 30 May 2017, the Second Respondent submits a notification and record of incident concerning his injury following which, a formal application for workers compensation was submitted;
  1. (cc)
    the Second Respondent's notification recorded that his anxiety, depression and insomnia commenced after the second interview on 19 January 2017. He also identified that the cause of the stress was the 'whole occurrence of being investigated';
  1. (dd)
    on 26 June 2017, Detective Cousins finalised the review into the balance of the allegations. He concluded that the allegations were capable of being substantiated and recommended that the allegations proceed to a hearing;
  1. (ee)
    after reviewing the material, on 17 October 2017, AC Codd directed the Second Respondent to attend a disciplinary hearing in respect of various allegations, including the allegation concerning the drug and alcohol complaint;
  1. (ff)
    on 20 May 2019, AC Codd found that the allegations concerning the email of 4 May 2016 could not be substantiated on the balance of probabilities to the Briginshaw standard, and bullying and harassment to be made out; and
  1. (gg)
    accordingly, no action was taken in respect of the allegation concerning the email of 4 May 2016. The Second Respondent subsequently expressed remorse for his conduct in respect of SC Barnes.

Second Respondent's submissions

  1. [36]The Second Respondent's submissions regarding the investigation into the email matter can be summarised as follows:
  1. In or about June 2015, SC Barnes transferred from Surfers Paradise to the Runaway Bay Station. The Second Respondent came to the view over time that SC Barnes was not performing her job well, describing her standard as 'diabolical';[35]
  1. this view was shared by other officers including Snr Sgt Underwood who stated that 'basically, Senior Constable Barnes was probably less capable than a trainee… It was just totally abysmal and some of the basics were not able to be done…';[36]
  1. SC Julie House shared a similar view of SC Barnes' performance, stating that she was doing things wrong, making mistakes and 'her performance was not up to standard';[37]
  1. the Second Respondent gave evidence that he determined that pressure would be applied until the officer reached the desired standard in that she needed to 'turn up for work, put in a fair day's work, not be down here, where she is but in the middle… I'd want this officer to perform like the rest of the officers at the police station';[38]
  1. the Second Respondent submits that unsurprisingly, industrial tension soon developed between the Second Respondent and SC Barnes;
  1. from late 2015 to early 2016, a number of officers expressed concerns to the Second Respondent that SC Barnes might be coming to work affected by drugs. The Second Respondent gave evidence that the first colleague to approach him was SC House, who told him that SC Barnes was coming to work with a glassy look in her eye and seemed to be under the influence of something;[39]
  1. the Second Respondent gave evidence that the second colleague to approach him was SC Louise Burke, and she gave him similar information about a washed out look;[40]
  1. the Second Respondent gave evidence that a third colleague, Constable Kim Norris, told him that SC Barnes was 'not with it' and that the Second Respondent should watch her;[41]
  1. in or about February 2016, the Second Respondent was tasked through his commanding officer Inspector MacQueen, by the Professional Practice Manager for the Gold Coast Region, Inspector Christine Hinds, to investigate a disciplinary breach and possible criminal matter concerning SC Barnes. The Second Respondent suggested to Inspector Hinds that he was not the appropriate person to conduct the investigation because he was SC Barnes' supervising officer but he was directed to perform the role;[42]
  1. the Second Respondent testified that he watched the footage of a confrontation between SC Barnes and her neighbour Ms Nelson and he was concerned that it showed SC Barnes gesticulating aggressively, drinking in public and being restrained by her companions.[43] An email was sent by the Second Respondent informing SC Barnes of the investigation he was making and it appears that this precipitated a 'meltdown' on the part of SC Barnes so that her revolver had to be removed;[44]
  1. in March 2016, the Second Respondent testified that he was approached by a fourth officer, Constable Ashley Duck and a fifth officer, Constable Emma Manchee. They asked not to be rostered with SC Barnes and expressed concerns about her being at work under the influence;[45]
  1. the Second Respondent testified that he called Inspector Hinds and told her that he had concerns but his recollection was that he was told in effect that nothing could be done unless the officer was involved in a critical incident.[46] On that basis, he took no further action;
  1. on 29 April 2016, the Second Respondent bumped into Inspector Tracey Dale, who had been at the station on the day of the 'meltdown' and she asked how the officer was going. Inspector Dale told the Second Respondent, in effect, that he should contact DACU. He sent them an email and he ended up speaking to Ms Clinch and then Inspector Nixon. He told them generally about his concerns regarding an officer, without disclosing any identities and, in response, Inspector Nixon told him that he needed to put his concerns in an email to his OIC who could in turn prepare a QP466, which, in essence, is a complaint against a member of the Appellant;
  1. the evidence from the Second Respondent and Snr Sgt Underwood is that they had a discussion on or about 2 May 2016. The Second Respondent then sent an email to Inspector Nixon on 4 May 2016, and copied it to Snr Sgt Underwood. Snr Sgt Underwood then cut and pasted the contents of the email into a formal QP466 document. The email effectively started with the words 'I have fears for the safety of this officer but more importantly the safety and well being of officers having to perform duties with her…' and the Second Respondent gave very specific evidence as to the nature of those fears[47] and went on to set out six matters which were the basis for his concern that the officer might be affected by drugs;
  1. a targeted drug test could be approved after assessment inquiries had been undertaken by a Commissioned Officer which, in this case, was Inspector MacQueen. Snr Sgt Underwood and Inspector MacQueen then had a conversation. Inspector MacQueen was aware of the tension between SC Barnes and the Second Respondent. He asked that the Second Respondent provide the names of officers who could provide support for his concerns. That step was taken on 6 May 2016 where the Second Respondent nominated SC Burke, SC House, Constable Manchee, Constable Duck and Constable Norris;
  1. on 9 May 2016, Inspector MacQueen was already visiting Runaway Bay Station to discuss concerns SC Barnes had voiced about the Second Respondent generally. While he was there, Inspector MacQueen spoke to SC Barnes about the drug concerns. He formed the view that they were well-founded and, in the event, the test was conducted. It came back negative and it appears that SC Barnes went on leave shortly afterwards; and
  1. on 15 June 2016, SC Barnes lodged a complaint against the Second Respondent in relation to the drug testing.

Consideration

  1. [37]The issue to be determined in this matter is whether the Appellant's conduct in investigating the complaint made against the Second Respondent with respect to the email matter constituted reasonable management action taken in a reasonable way pursuant to s 32(5) of the Act.

Witness assessment

  1. [38]The Appellant made submissions that Detective Cousins and AC Codd were reliable witnesses who made concessions where appropriate and that their evidence was consistent with documentary records.
  1. [39]I agree with the Appellant's assessment that AC Codd presents as a reliable witness. He gave forthright evidence and made reasonable concessions. My assessment of Detective Cousins was that he was forthright and direct, however, he appeared to fervently cling to his view that the Second Respondent had acted inappropriately with respect to the email matter. I have no doubt that Detective Cousins held an honest belief that this was the case, however, his demeanour was not one of a dispassionate investigator. Rather, he appeared to give his evidence in a manner that was intended to confirm that his report recommendations were correct, despite the relevant allegation not being substantiated. His response to AC Codd's decision to not substantiate the allegation regarding the email was quite telling in that he appeared to be bothered by this outcome and certainly did not agree with the decision. Allegations of actual bias are discussed further below, however, as a general assessment of credit, I approach Detective Cousins' evidence cautiously given this lack of detachment. I note, however, that Detective Cousins also presented as a diligent and articulate officer, and the lack of detachment in his testimony may have stemmed from a genuinely compassionate view of SC Barnes' circumstances. Detective Cousins investigated both the email matter and the other matter and may have formed an adverse view of the Second Respondent after becoming privy to evidence obtained through the investigation into the other matter.
  1. [40]The Second Respondent presented as a reliable witness. The Appellant submits that the Second Respondent regularly gave answers inconsistent with answers given during the interviews with Detective Cousins. An example given was the Second Respondent's evidence that he recorded SC Barnes' dress code breach in the Professional Development and Assessment Log ('PDA') because SC Barnes had been dishonest in her answers and because he had been directed by OIC Hildebrand. The Appellant submits that this was inconsistent with the Second Respondent's response to AC Codd that OIC Hildebrand had advised him to record constructive criticism in the PDA generally. I consider this difference in recollection to be minor in nature and not a serious reflection of the Second Respondent's reliability.
  1. [41]The Appellant submits that the Second Respondent's evidence that Detective Cousins had admitted that he had instigated the QP466 notification in relation to the complaint against the Second Respondent, despite documents stating that the investigation arose out of SC Barnes' complaint, could not have been genuinely believed by the Second Respondent as it did not form part of his case. I am not persuaded by the Appellant's characterisation of this statement as an example of 'wild allegations' as it is quite possible that the Second Respondent genuinely held this belief.
  1. [42]Given that the relevant events took place over four years prior to the hearing, I generally place greater weight on the documentary evidence provided over witness recollections where available.

Did the injury arise out of management action?

  1. [43]As outlined above, I accept that the cause of injury was the investigation into the Second Respondent's email of 4 May 2016. The relevant question is whether this investigation is considered 'management action' for the purposes of s 32(5) of the Act.
  1. [44]In Allwood v Workers' Compensation Regulator ('Allwood'),[48] Deputy President O'Connor described 'management action' in the following terms:

The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression "management action" relates to those actions undertaken when managing the worker's employment…

…

…The exclusory action in s 32(5) of the Act was, in my view, intended by Parliament to relate to specific management action directed to the Appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment…[49]

  1. [45]In the Second Respondent's SOFC, it was submitted that the action taken by the Appellant against the Second Respondent was not management action in accordance with the provision of s 32(5) of the Act because:
  1. the action taken by the Appellant against the Second Respondent was not action to discipline him by reason of his work performance; and
  1. the action taken by the Appellant against the Second Respondent was for reasons which included the fact that he had made a PID.
  1. [46]Applying the principles outlined in Allwood, the decision of the Appellant to investigate the Second Respondent's email matter and in the course of that investigation proceed to a disciplinary hearing does not form part of the everyday duties or tasks that the Second Respondent performed in his employment. The concept of management action is not restricted to disciplinary matters for work performance, nor by the reasons for which the action was taken. The actions taken to investigate the email matter were not connected to the Second Respondent's everyday duties and tasks and fall squarely within the concept of 'management action' for the purposes of s 32(5) of the Act.

Was the management action reasonable?

  1. [47]In WorkCover Queensland v Kehl,[50] President Hall stated that 'reasonable' should be treated as meaning 'reasonable in all the circumstances of the case'. The question is then whether the action of the Appellant to commence an investigation into the Second Respondent's email matter and deciding to proceed to a disciplinary hearing constitutes reasonable management action.
  1. [48]The task of determining the reasonableness of management action was considered by Martin J in Davis v Blackwood:[51]

…The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.[52]

  1. [49]The relevant consideration is whether the Appellant engaged in reasonable management action by commencing an investigation into the complaint of SC Barnes relating to the Second Respondent's email matter. The Appellant received a complaint from SC Barnes on 15 June 2016 alleging bullying and harassment by the Second Respondent. SC Barnes provided a further detailed statement in which she alleged, inter alia, that the Second Respondent's complaint that she was misusing or abusing drugs and/or alcohol was false and designed to cause her a detriment.
  1. [50]SC Barnes' complaint was referred to the CCC where it was assessed as an allegation of corrupt conduct and referred back to the Appellant for investigation. The Daily Assessment Committee referred the complaint for assessment and after a process of assessment, the complaint was allocated to Detective Cousins for investigation.
  1. [51]As I understand it, the Second Respondent does not contend that the decision to investigate SC Barnes' complaint alleging bullying and harassment was not reasonable, however, submits that the Appellant did not reasonably address the email matter in the context of the provisions of the PID Act.
  1. [52]The Second Respondent submits that the email matter was subject to the provisions of the PID Act and that any investigation that ignores these provisions or fails to address that a matter has been registered as a PID is unreasonable.
  1. [53]The Second Respondent outlined the basis for his concerns that SC Barnes was affected by drugs on duty in the email of 4 May 2016. On 23 May 2016, ESC wrote to the Second Respondent advising that his email had been classified as a PID. The Second Respondent's email notification had been registered under the PID Act on the basis that it seemed to involve corrupt conduct or a substantial and specific danger to public health or safety as SC Barnes had access to a revolver, a vehicle and information.
  1. [54]Following the commencement of the investigation into SC Barnes' complaint, the Second Respondent was compelled to attend a 'directed interview' at Runaway Bay Police Station pursuant to the Police Service Administration Act 1990 (Qld) and submits that this conduct made him the subject of disciplinary action because of his disclosure.
  1. [55]The Second Respondent submits that Detective Cousins' investigation proceeded without ever considering whether or not the email enjoyed PID status, noting that Detective Cousins did not obtain advice as to whether (a) if the status existed, it should be withdrawn; and (b) if the status did not exist, the member should be accordingly advised.
  1. [56]The Appellant makes a number of submissions on the PID issue. First, the Appellant submits that the conduct described in the email notification does not answer the description in s 13(1)(c) of the PID Act because using illicit drugs is not for the purpose of providing a benefit to a person or causing a detriment to another. Section 13 of the PID Act is outlined below:

13  Disclosure by a public officer

(1) This section applies if a person who is a public officer has information about—

(a) the conduct of another person that could, if proved, be—

(i) corrupt conduct; or

(ii) maladministration that adversely affects a person’s interests in a substantial and specific way; or

(b) a substantial misuse of public resources (other than an alleged misuse based on mere disagreement over policy that may properly be adopted about amounts, purposes or priorities of expenditure); or

(c) a substantial and specific danger to public health or safety; or

(d) a substantial and specific danger to the environment.

(2) The person may make a disclosure under section 17 in relation to the information to a proper authority.

(3) For subsection (1), a person has information about the conduct of another person or another matter if—

(a) the person honestly believes on reasonable grounds that the information tends to show the conduct or other matter; or

(b) the information tends to show the conduct or other matter, regardless of whether the person honestly believes the information tends to show the conduct or other matter.

  1. [57]The relevant sub-paragraphs in this matter are (1)(a)(i) and (c). Section 13(1)(a)(i) of the PID Act refers to 'corrupt conduct'. Schedule 4 of the PID Act refers to s 15 of the Crime and Corruption Act 2001 (Qld) for the definition of 'corrupt conduct':

15 Meaning of corrupt conduct

(1) Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that—

(a) adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of—

(i) a unit of public administration; or

(ii) a person holding an appointment; and

(b) results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that—

(i) is not honest or is not impartial; or

(ii) involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or

(iii) involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and

(c) is engaged in for the purpose of providing a benefit to the person or another person or causing a detriment to another person; and

(d) would, if proved, be—

(i) a criminal offence; or

(ii) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.

(2) Without limiting subsection (1), conduct that involves any of the following could be corrupt conduct under subsection (1)—

(a) abuse of public office;

(b) bribery, including bribery relating to an election;

(c) extortion;

(d) obtaining or offering a secret commission;

(e) fraud;

(f) stealing;

(g) forgery;

(h) perverting the course of justice;

(i) an offence relating to an electoral donation;

(j) loss of revenue of the State;

(k) sedition;

(l) homicide, serious assault or assault occasioning bodily harm or grievous bodily harm;

(m) obtaining a financial benefit from procuring prostitution or from unlawful prostitution engaged in by another person;

(n) illegal drug trafficking;

(o) illegal gambling.

  1. [58]Conduct involving the misuse of either prescription or illicit drugs potentially satisfies the description provided in s 15(1)(c) of the Crime and Corruption Act 2001 (Qld) in that it is engaged in for the purpose of providing a benefit to the person engaged in the conduct. It was not necessary for the Second Respondent to specify in his email that he believed the conduct to be corrupt in order to satisfy this section, simply that he believed on reasonable grounds that the information tends to show the conduct.[53]
  1. [59]The second manner in which the email matter could have been a PID was if it involved information about 'a substantial and specific danger to public health or safety' in accordance with s 13(1)(c) of the PID Act. In order to satisfy this description, it must be established that 'the person honestly believes on reasonable grounds that the information tends to show the conduct or other matter'[54] or that 'the information tends to show the conduct or other matter, regardless of whether the person honestly believes the information tends to show the conduct or other matter'.[55]
  1. [60]The email of 4 May 2016 stated that the Second Respondent reasonably suspected that SC Barnes may have been using either prescription or illicit drugs. The Appellant submits that reasonable suspicion is a lower standard of opinion than a belief.[56] The Second Respondent contends that the email was drafted with a view to the Appellant's procedures and says nothing about the Second Respondent's state of mind.
  1. [61]Submissions were made from both parties as to whether the Second Respondent's email constituted a PID for the purposes of s 13 of the PID Act, citing the test in Flori v Winter,[57] regarding corrupt conduct and the requirements of a belief rather than suspicion that there was a substantial and specific danger to public health or safety. It is not necessary for me to determine whether the email was, in fact, a PID for the purposes of this appeal, only whether the Appellant acted reasonably in deciding to investigate a PID or a purported PID given the provisions of the PID Act. Regardless of whether the Second Respondent's disclosure ultimately satisfied the requirements of s 13 of the PID Act, the only appropriate way for the Appellant to determine if the email matter involved a PID and therefore was subject to the protections of the PID Act was, it would seem, through the conduct of an investigation.
  1. [62]The Second Respondent submits that the email notification was classified as a PID by the CCC and that classification was immediately made known to the Appellant and the Second Respondent. The Appellant informed the Second Respondent in writing on 23 May 2016 that the allegation contained in the email matter 'had been classified as a "public interest disclosure" [and that] consequently your details have been recorded as per section 29 of the Act'.[58]
  1. [63]Section 29 of the PID Act provides the following:

29 Record of disclosure

(1) The chief executive officer of a public sector entity to which a public interest disclosure is made must keep a proper record of the disclosure, including—

(a) the name of the person making the disclosure, if known; and

(b) the information disclosed; and

(c) any action taken on the disclosure; and

(d) any other information required under a standard made under section 60.

(2) The chief executive officer of a public sector entity to which a public interest disclosure is referred under section 31 or 34 must keep a proper record of the disclosure, including—

(a) the name of the person making the disclosure, if known; and

(b) the information disclosed; and

(c) the name of the public sector entity, or member of the Legislative Assembly, that referred the disclosure; and

(d) any action taken on the disclosure; and

(e) any other information required under a standard made under section 60.

(3) In this section—

public interest disclosure includes a purported public interest disclosure.

public sector entity does not include—

(a) a court or tribunal; or

(b) the Executive Council.

[emphasis added]

  1. [64]Section 29 of the PID Act provides that a proper record must be kept of the details associated with the PID. Section 29(3) defines a PID for the purposes of this section as to include a purported PID. The requirement that a record be kept extends beyond actual disclosures to disclosures which purport to be a PID. The mere act of complying with s 29 does not render all recorded disclosures PIDs, as the definition includes 'purported' PIDs.
  1. [65]A number of other sections in the PID Act are relevant to considerations of the Second Respondent's email. Section 45 of the PID Act states the following:

45 Reasonable management action not prevented

(1) Nothing in this part is intended to prevent a manager from taking reasonable management action in relation to an employee who has made a public interest disclosure.

(2) However, a manager may take reasonable management action in relation to an employee who has made a public interest disclosure only if the manager’s reasons for taking the action do not include the fact that the person has made the public interest disclosure.

…

  1. [66]Section 45(2) provides that reasonable management action may only be taken if the reasons for taking the action do not include the fact that the person has made the PID. I am not persuaded that s 45(2) renders the Appellant's actions unreasonable, as the reason the Appellant took the action to investigate the Second Respondent's email was because of a complaint initiated by SC Barnes, not because the Second Respondent made a PID, or a purported PID.
  1. [67]Section 36 of the PID Act is outlined as follows:

36 Immunity from liability

A person who makes a public interest disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process, including disciplinary action, for making the disclosure.

  1. [68]It was submitted that the Second Respondent should not be subject to disciplinary action for making the disclosure pursuant to the immunity provided for in s 36 of the PID Act. In my view, conducting an investigation did not subject the Second Respondent to 'liability arising by way of administrative processes, including disciplinary action'. An investigation to determine whether the making of a PID was engaged in good faith does not constitute a 'liability'. The decision to investigate SC Barnes' complaint, as the Appellant was bound to do, merely commenced a process to ascertain whether there was sufficient evidence to substantiate the allegations made by SC Barnes. The decision to investigate an allegation should not be conflated with the taking of disciplinary action, which may well constitute a liability in particular circumstances.
  1. [69]Further, if s 36 of the PID Act was to be construed in such a way as to prohibit an investigation into the making of a disclosure, a charge relating to the provision of false or misleading information [59] could never be pursued because the basis of any PID could never be investigated.
  1. [70]Sections 45 and 36 of the PID Act provide protections for disclosers in relation to their PIDs. This is to ensure that those who make PIDs do not suffer reprisal for doing so. I do not accept, however, that the mere act of making a disclosure prevents management from investigating the basis upon which the disclosure was made. If the disclosure was registered pursuant to s 29, which includes 'purported PIDs' as discussed above, it may still be the case that the disclosure is not consistent with the requirements of s 13 of the PID Act and so is not a PID for the purposes of ss 45 and 36. In order to determine if the requirements of s 13 have been satisfied, management may have to investigate whether the discloser honestly believed, on reasonable grounds, that the information tended to show the conduct.[60] If the investigation confirms that this is the case, the protections of ss 45 and 36 will operate to protect the discloser from liability for making the disclosure. If the investigation concludes that this is not the case, the disclosure is not a PID pursuant to s 13 and so is not afforded the protections of ss 45 and 36. I do not consider the recording of the Second Respondent's email of 4 May 2016 serves as confirmation that the disclosure was a PID, solely on the basis of compliance with s 29.
  1. [71]The PID Act does not expressly prohibit the investigation of disclosures, with the PID Act only proscribing the taking of reprisal action which involves imposing a detriment or liability on a person who has made a PID. The decision to conduct an investigation in the circumstances of this matter is not a detriment. Whilst any disciplinary action that might ultimately be taken following an investigation may constitute a detriment, the act of investigating the allegations could not reasonably be considered as such. This view is consistent with s 66 of the PID Act which makes it an offence to give an authority information that is false or misleading on the basis that it be treated as a PID. Section 66 of the PID Act is outlined as follows:

66 False or misleading information

(1) A person must not—

(a) make a statement to a proper authority intending that it be acted on as a public interest disclosure; and

(b) in the statement, or in the course of inquiries into the statement, intentionally give information that is false or misleading in a material particular.

Maximum penalty—167 penalty units or 2 years imprisonment.

…

  1. [72]Section 66 would be an impotent provision if the truth or otherwise of a disclosure could not be investigated. I accept the submission that it would be an absurd outcome if a person could be charged criminally with making a false or misleading PID, but the mere investigation of an allegation of a false or misleading PID would be an unlawful reprisal.
  1. [73]Section 67 of the PID Act provides the following:

67 Misconduct by breach of Act

(1) A public officer is guilty of misconduct under an Act under which the officer may be dismissed from office or disciplined for misconduct, if the officer contravenes any of the following—

• section 41 (Offence of taking reprisal)

  • • section 65 (Preservation of confidentiality)

• section 66 (False or misleading information).

(2) To remove any doubt, it is declared that under the Crime and Corruption Act 2001, the Crime and Corruption Commission may investigate the contravention, or the alleged or suspected contravention, if—

(a) the public officer is a member of the police service; or

(b) the contravention is corrupt conduct by a person holding an appointment in a unit of public administration within the meaning of the Crime and Corruption Act 2001.

  1. [74]In my view, it is not unreasonable management action to investigate whether a disclosure contained false or misleading information or was in fact a PID as per the requirements of s 13 of the PID Act. To determine otherwise would prevent the investigation of disclosures that included false or misleading information as provided for in ss 66 and 67 of the PID Act.
  1. [75]For the reasons outlined above, the Appellant's decision to investigate SC Barnes' complaint regarding the Second Respondent's email was reasonable management action.

Was the investigation conducted in a reasonable way?

  1. [76]The second aspect to s 32(5) of the Act is whether conduct determined to be reasonable management action was taken in a reasonable way. The Second Respondent notes that the Appellant did not inform the Second Respondent prior to the investigation that it had rescinded or was considering the rescission of the PID classification. The Second Respondent submits that it was not reasonable for the Appellant to embark on disciplinary proceedings without making a finding on the PID status.
  1. [77]In my view, there was no obligation on the Appellant to make a finding on the PID status prior to embarking on disciplinary proceedings. The very purpose of the investigation and disciplinary hearing was to determine if the Second Respondent had provided false or misleading information as part of the email notification. No disciplinary action could have been taken prior to this determination, nor on the evidence before me was disciplinary action taken. To make a finding that the disclosure was or was not a PID prior to hearing of all the evidence would not have been appropriate. The Appellant was not required to inform the Second Respondent that consideration was being given to 'rescind' the PID and the investigation could not be considered to have been conducted in an unreasonable way on this basis.
  1. [78]The investigation into the email matter was allocated to Detective Cousins following the complaint by SC Barnes. Detective Cousins conducted a significant number of interviews with a number of officers and then interviewed the Second Respondent on 4 August 2016 and again on 19 January 2017. Detective Cousins gave evidence that by October 2016, a decision had been made that the Second Respondent would be formally charged.
  1. [79]The Second Respondent gave evidence that, during the second interview, he asked about the next steps concerning the email matter and was told by Detective Cousins that the email matter would be proceeding to the AC. Detective Cousins agreed that he may have said this after the interview was concluded and that this was his intention at that time. The Second Respondent gave evidence that this information from Detective Cousins significantly increased his anxiety.
  1. [80]AC Codd gave evidence that his practice was to give the brief a preliminary scan when he is deciding whether or not there is a prima facie case. AC Codd testified that when he subsequently 'drilled down' into the material, he 'very quickly' came to the conclusion that the evidence did not support the charge:

But I very quickly, on reading the materials and reading your submission, come to the conclusion that I did not think that you could uphold the notion that Sergeant Stretton had been deliberately misleading, on the basis of the material that were there. I wasn't convinced that the case was strong enough, or the evidence was there to a sufficient standard to support that.[61]

  1. [81]AC Codd did not recall reading the balance of the material until he was considering the matter in earnest. AC Codd gave evidence that a charge of deliberately withholding information or misleading the Appellant in relation to a subject member is extremely serious and could cause considerable anxiety. AC Codd also gave evidence that he expected his investigators to act fairly and provide accurate summaries of material because once it is decided to charge the person, the member might be directed to take part in a disciplinary process which can be the source of stress.[62]
  1. [82]The Second Respondent claims the investigation into the email matter was not conducted in a reasonable way as the investigation was not conducted with the appropriate level of fairness on the following grounds:
  1. general bias;
  1. report summaries;
  1. failure to review evidence; and
  1. misrepresentations to the Second Respondent.
  1. [83]The Appellant disputes that the investigation was unfair and contends that the investigation was conducted in a fair and reasonable way.

General bias

  1. [84]The Second Respondent contends that there was evidence of general bias in the investigation. The Second Respondent submits that Detective Cousins asserted a positive case as to the evidence of the other officers to the Second Respondent during the interview. Detective Cousins maintained this view in his testimony, stating:

The evidence which I collated over that month period interviewing people identified that Sergeant Stretton's assertions were not accurate, and … all the witnesses he nominated were unable to verify anything of what he was saying. So the most, primary witnesses were a number of four or five officers he identified as witnessing the indicia on Senior Constable Barnes, that had witnessed her being under the influence of drug or liquor, her emotional state, etc., etc, I interviewed all those officers. All those officers were unable to corroborate and didn't indicate that they’d spoken to Sergeant Stretton at all.[63]

  1. [85]This testimony is not supported by the record of interviews with the officers, with SC Burke confirming she had spoken with the Second Respondent and SC House confirming that she had a discussion about the drugs issue. SC House did not state the name of the person she discussed the matter with, but in the context of the interview subject it would seem most likely that it was the Second Respondent. Detective Cousins did not ask SC House who she had discussed the issue with to determine if she had in fact spoken with the Second Respondent:

House:  I thought she was on drugs myself.

Cousins: Yeah. that’s fine.

House:  I had a discussion about that.

Cousins: Listen to the questions and just try and stick to the scope.[64]

  1. [86]The Second Respondent submits that Detective Cousins may not have been the appropriate person to investigate SC Barnes' complaint given that he had been involved in driving her to a hospital after she had undergone the drug test. Detective Cousins gave the following evidence:

After the drug test, we had an attempted suicide by Barnes that also became the subject of rumour and innuendo at the station that I was having an affair with her. What actually happened is I picked her up and took her down to a mental health facility at Currumbin. Again, they are the sort of rumours that permeated at the station and were not put to bed.[65]

  1. [87]The Second Respondent submits that a natural reading of Detective Cousins' evidence was that the trip to Currumbin was not long after the drug test on 4 May 2016, with his interview with the Second Respondent occurring in August 2016 and the investigation report signed off in November 2017. The Second Respondent submits that it was not reasonable practice for the Appellant to use an investigating officer who has driven the complainant to hospital.
  1. [88]I accept the Appellant's submission that it is materially unfair to suggest that such conduct demonstrates bias on behalf of Detective Cousins given that this was not put to Detective Cousins during his evidence. There is no evidence that this occurred prior to or during the investigation and so cannot be relied upon as evidence of bias on the part of Detective Cousins.
  1. [89]The Second Respondent submits that Detective Cousins made many comments in the interviews that go beyond merely probing and seem to fall into the category of cross-examination. One example is when the Second Respondent explained that he had concerns when he saw footage of SC Barnes behaving aggressively in public, whilst drinking from a bottle and Detective Cousins changed the conversation to focus on the Second Respondent:

Cousins: - um have you ever been drunk?

Stretton: Not for many years.

Cousins: Have you been drunk?

Stretton: Yes I certainly have.

Cousins: Alright. You've been drunk more than once.[66]

  1. [90]The Second Respondent referred to a number of comments made by Detective Cousins that appear to cross-examine the participants rather than ask the type of questions that one would normally expect in an investigation.[67] Whilst this was less than ideal, I consider this a blemish on the investigation and am not of the view that it reveals the existence of bias.
  1. [91]The Second Respondent submits that the Records of Interview generally reflect a readiness to explore issues that might inculpate the Second Respondent, and discount those matters that might exculpate him. The examples below are extracted from the Second Respondent's submissions:
  1. When he interviews Snr Sgt Underwood, Det Cousins ask him, "Sgt Stretton tried to insinuate that she [Barnes] had a drinking problem, do you know what the basis of that was?"
  1. When Burke suggests that Barnes was behaving like somebody on ecstasy, Cousins seems to round on her by saying "Is that what you’re alleging?" and when she gives observations that might suggest drug behaviour, Cousins seems to suggest she has jumped to conclusions: "So, it was, for you, you immediately suspected drugs?"[68]
  1. [92]When Constable Manchee mentioned that her colleagues in the Station were disappointed with the erratic behaviour from SC Barnes, Detective Cousins did not enquire as to the names of those colleagues. Neither does he press Snr Sgt Underwood who indicated that he had misgivings about SC Barnes' honesty. Detective Cousins also did not follow up the information provided by SC House about a civilian, who worked at a bank and who had witnessed SC Barnes' behavioural changes. 
  1. [93]It was clear from Detective Cousins' testimony that he did not agree with the decision to acquit the Second Respondent, stating:

I have made it very clear, and I made it clear at the time, that it is not my opinion. I will leave Assistant Commissioner Codd to explain the reasoning behind not proceeding with a particular.[69]

  1. [94]In response to the Second Respondent's submission that Detective Cousins only explored issues which inculpate the Second Respondent, the Appellant submits that he was attempting to test propositions and seek out details and specifics. The Appellant submits that Detective Cousins' questioning was appropriate and that it is proper for an investigator to test answers which purportedly exculpate a person from wrongdoing to minimise future speculation as to whether they were credible answers.
  1. [95]The Second Respondent submits that the manner in which Detective Cousins conducted the two-hour interview with him was 'harrowing and demeaning' and involved an accusatory approach rather than one of 'firmness with courtesy'. The Appellant notes that neither the Second Respondent nor his Union representative made any complaint about the manner of the investigation when it was occurring.
  1. [96]The critical issue in the investigation, and the issue regarding which the Second Respondent alleges Detective Cousins displayed bias, is the allegation that the Second Respondent withheld information from his email of 4 May 2016 that may have been material. The allegation was that the Second Respondent was aware that SC Barnes was suffering from medical conditions, scabies, shingles and was sleeping in her vehicle and that these matters should have been included in the email of 4 May 2016.
  1. [97]The Second Respondent submits that the requirements of mandatory reporting required for the grounds for considering whether there is drug use do not require consideration of the surrounding circumstances of the person's lifestyle. More importantly, the Second Respondent submits that there was no omission on the basis that the issues raised were already well known to the Second Respondent's colleagues.
  1. [98]The Appellant submits that although the other matters relating to SC Barnes' were known to various other officers of the Appellant, there is no evidence that they were known by Inspector Nixon, the person to whom the complaint was made. The Second Respondent knew within days that the Appellant was looking for more information in respect of his complaint and he did not identify that there were other matters which might count against the allegation he was making.
  1. [99]The OIC, Snr Sgt Underwood, who received the information from the Second Respondent and used it to create the QP466 notification, was aware of SC Barnes' medical conditions. Snr Sgt Underwood gave evidence in his record of interview that he had seen a medical certificate from her treating psychologist about her PTSD as confirmed in an email of 26 February 2016 from Snr Sgt Underwood to Inspector Andrew Godbold and Katherine Furey. This email also confirmed that Snr Sgt Underwood was aware that SC Barnes was taking antidepressant medication for her condition. In Snr Sgt Underwood's interview, he confirmed that he had heard rumours that SC Barnes was sleeping in the vehicle[70] and that she was involved in a dispute with her neighbours.[71]
  1. [100]In reference to the existence of shingles, Snr Sgt Underwood stated in his interview that he knew that there was a medical certificate for skin problems. This was also known by Sgt Keeling who stated in his interview, 'I believe that she did have – suffer from shingles or there was some shingles or scabies or, or some, there was some suggestion it was shingles or scabies'.[72] SC House stated in her interview that '…there was quite a few different things that she had and there never seemed to be a proper diagnosis. It went from shingles to scabies to staph…'.[73] The issue was clearly known to other officers and there was concerns as to what the condition was and how it had developed. Parts of the Station were fumigated to address possible contagious issues and there was an inquiry to determine if a particular offender had given the condition to SC Barnes.
  1. [101]Detective Cousins obtained an email dated 9 August 2016 from Inspector MacQueen where he described the steps he took before he arranged SC Barnes' urine test. Inspector MacQueen confirms in his email that he was aware that SC Barnes was using prescription drugs and stated that 'she often said she was going home to take drugs' in the form of sleeping pills. Inspector MacQueen confirms that he developed a reasonable suspicion based on the information SC Barnes had provided together with the advice he had been briefed on previously. He states, 'I definitely reasonably suspected that the officer may have been abusing prescription drugs, which was ultimately affecting her behaviour and the way she was viewed by others'.[74] Inspector MacQueen confirms that he was aware that SC Barnes had previously taken sick leave, stating that she had caught scabies from an offender and that she had been away on stress-related leave. Finally, Inspector MacQueen also confirmed that he was aware that SC Barnes had previously raised concerns about the Second Respondent.
  1. [102]The Second Respondent noted that, although the email and information within seemed to have been gathered after the interview with the Second Respondent, the email is important for two reasons. First, it indicates that as a senior commissioned officer, Inspector MacQueen indicated that even after knowing the details of stress, industrial complaints, prescription drugs and sick leave, he considered that there was a basis for the test. Second, the email indicates that the information was not a secret given that Inspector MacQueen was aware of the issues after only meeting with SC Barnes for a short time.
  1. [103]The Second Respondent submits that when Detective Cousins came to interview the Second Respondent on 4 August 2016, he knew that observations had been made by other experienced police officers which gave direct support for the view that reasonable suspicion could be harboured about drugs. The Second Respondent submits that the contention that he had been grossly misleading by withholding particular information was wildly implausible because the information was known throughout the police station, and almost entirely, by Snr Sgt Underwood.
  1. [104]The Appellant submits that the summation of the evidence of SC Burke, SC House and Constable Manchee, the language used during the interview with the Second Respondent and Detective Cousins' attempts to keep witnesses focussed on his questions during the interviews does not establish any form of actual bias or prejudgment.
  1. [105]The Appellant submits that SC Burke and Constable Manchee denied ever having seen SC Barnes under the influence whilst at work. In my view, the response by SC Burke to the question 'Do you have any information' as 'No, No. I have no information' must be read in the context of her next statement which was 'I thought she was on something'.[75]
  1. [106]The allegation that the Second Respondent had withheld information was not unreasonable given the context of SC Barnes' complaint, and could not be described as 'wildly implausible'. It does not appear that the Second Respondent withheld relevant information in his email notification, with the decision of AC Codd indicating that this was also his conclusion. However, the fact that Detective Cousins formed the view that the Second Respondent had done so does not reach the level of actual bias.

Report Summaries

  1. [107]The Second Respondent submits that the investigation report prepared by Detective Cousins was important in that it was an opportunity for him to gather evidence so that he could decide what recommendations to make. When the matter came before AC Codd, he was required to consider if there was a prima facie case and he referenced the report for that purpose.
  1. [108]The Second Respondent submits that the precis of evidence arising out of Detective Cousins' interviews were not an accurate summary of what occurred and the precis did not include evidence from witnesses that supported the Second Respondent, referring to the evidence from SC House, Constable Manchee, SC Burke and Snr Sgt Underwood.
  1. [109]The report summaries confirmed that the witnesses had no specific information relevant to SC Barnes' use of drugs or alcohol. Given that the investigation was into the conduct of the Second Respondent, and not whether the claim regarding SC Barnes' use of drugs or alcohol was made out, it would have been appropriate to provide a summary of each witness' evidence with respect to relevant interactions with the Second Respondent. The relevant question was not whether they had any specific information relevant to SC Barnes' use of drugs or alcohol, but whether they had communicated any concerns regarding this issue to the Second Respondent. Detective Cousins seems to have taken a particularly narrow point on which to summarise each witnesses' evidence.
  1. [110]The Appellant submits that the Second Respondent was not aware of the report summaries at the time he sustained the injury and so they cannot have contributed to his injury. I disagree with this submission and consider the report summaries to be relevant as they informed the decision of AC Codd to proceed to a disciplinary hearing, with this decision contributing to the Second Respondent's injury.
  1. [111]Submissions were made as to the reasonableness of the process through which Detective Cousins' recommendations were the subject of review within ESC. Detective Cousins gave evidence that in his experience, the reviews were thorough, however, AC Codd suggested that the reviews involved a cursory assessment of the written report.[76]
  1. [112]Although the report summaries were not drafted in an ideal manner, the fact that the transcripts were included in the report ensured that the ESC and AC Codd had access to the source material prior to the decision to progress the matter. In those circumstances, I consider the drafting of the report summaries to be a blemish rather than management action taken in an unreasonable way.   

Properly reviewing the evidence

  1. [113]The Second Respondent submits that from the period August 2016 to May 2019, when he was acquitted of the allegation regarding the matter, he did not have the opportunity to have an investigator test the issues before making a recommendation.
  1. [114]The Second Respondent submits that Detective Cousins needed to ask whether there was objective evidence to ground the concern regarding the Second Respondent's email notification. The Second Respondent submits that he lost the opportunity to have his case considered properly because the Appellant, through Detective Cousins, did not carry out its role reasonably.
  1. [115]Detective Cousins investigated the matter and decided that the evidence was capable of supporting a finding that the email on 4 May 2016 was sent for an improper purpose. This decision was open to him, although it appears that the evidentiary basis upon which he reached this conclusion was not strong. The fact that after hearing from the Second Respondent and considering the material AC Codd found the charge not to be made out does render Detective Cousins' finding that the evidence was capable of establishing the allegation to be inherently unreasonable. 

Did the Appellant misrepresent evidence to the Second Respondent?

  1. [116]When the Second Respondent raised his concerns regarding SC Barnes' conduct, he was asked to provide the names of officers who could support his concerns. The Second Respondent provided the names of five officers, being SC House, Constable Manchee, Constable Duck, Kim Skinner and SC Burke.
  1. [117]Detective Cousins gave evidence that he sought to interview each of the persons identified by the Second Respondent as being able to corroborate the Second Respondent's concerns. The Appellant submits that many of those witnesses failed to corroborate the Second Respondent's concerns. This was significant because in his email of 4 May 2016, the Second Respondent had stated that a number of other officers had made reports of their own opinion of SC Barnes' alleged drug problems and other officers had approached him with their concerns or observations.[77]
  1. [118]Detective Cousins informed the Second Respondent in the interview of 4 August 2016 that all five officers had been interviewed. The interview transcript regarding this point is as follows:

Cousins: Now in relation to my interviews with Julie House, Emma Manchee, Ashley Duck, Kim  Skinner, Louise Burke no one identified that she had a drug look.

Stretton:  Okay. Well my observation of her she had a washed out drug look.

Cousins:  Sergeant Keeling stated he never saw her with a washed out drug look.

Stretton: I can't comment in relation to what Sergeant Keeling did and didn't see.

Cousins: No I'm just commenting you –

Stretton: Yeah.

Cousins: - you, you appear to be the only one.[78]

  1. [119]The Second Respondent testified that the tone of Detective Cousins' questioning left him feeling like 'an idiot' and like he was making it all up with no one backing him up.[79]
  1. [120]The Second Respondent submits that the statement made by Detective Cousins was simply not true. Detective Cousins had conducted interviews with the officers less than three weeks earlier on 17 and 18 July 2016.
  1. [121]The Second Respondent submits that interviews with the officers gave support to the Second Respondent's observations. The following passages from the records of interview are extracted from the transcripts under Exhibit 8:

Cousins: Do you have any information?

House:  No. No. I have no information. I thought that she was on something. Just her mannerism and her ---

Cousins: Well, you can't say no and then thought she was on something.

House:  I believe she was on something.

Cousins: Okay. Well go through with me of how you drew that inference.

House:  More so with her mood change. Her mood change was erratic. The personality was so erratic. She changes like the wind. Like I've known she'd be on the counter laughing with someone and then she would lose it and be like the amount of times I've had to go down to the counter and solve a situation that was blown way out of proportion simply because she has lost the plot. And I'd look at her and her eyes were all glassed over and she was not there. And when I'd be trying to teach her things and show her things I've never known anyone so difficult to try to teach and not to take things on board, not - the most simplest of things. More so her change of behaviour and how quickly her behaviour would snap and change.

Cousins: Any other people witness this?

House:  I think a lot of people probably saw it.

---

 

Cousins:  Did you ever see – now, you're an experienced officer at Surfers Paradise – did you ever see Senior Constable Barnes with what one person described as a washed out drugged look?

---

Burke:  Yes, On-shift sometimes. Yes. Like that’s what I’m trying to explain to you. Like her, she was a bit different and she would be very glass-eyed and wide-eyes some days.

Cousins:  And what could that be attributed to, from your experience?

Burke:  Maybe being on prescription drug of some sort like Valium or something or I’ve seen  people who use Ecstasy on this, like very fast and it was unusual behaviour…

---

House:  but you know throughout the time like I'd help her and show her different things but she wasn't picking things up. She just wasn't learning. She just - and that's what made me think she's got to be on something because I used to think, like you’d look at her and there was no one home, you. do you understand what I mean? Like you try - I was trying to explain to her how to do things and there was no one home. And that's where I had a few concerns in relation to her because she was not learning stuff and not for the lack of not trying - trying to help her…

---

Cousins:  Are you aware there was an allegation in May this year that alleged Senior Constable  Barnes was suspected to be using illicit substances?

Manchee:  Yes

Cousins:  What do you think of that?

Manchee:  Look, I haven’t seen it. I can only go on by working with my colleagues and people’s disappointment in the erratic behaviour and everything like that and for no explanation of that behaviour. It wasn’t their opinion of normal erratic behaviour.

---

Cousins: All right. So on this one occasion that you saw Barnes and she had a glassy look in her  eye … and then you've gone and seen Stretton? Did you do it on that day?

Burke:  I think I watched her over a couple of shifts and I was I observed her and I said to Stretton, "Is Barnes okay? It seems like she could be possibly under the influence of something." He goes, "I’ll look into it". He's very short and sharp with his comments".

---

House:  I thought she was on drugs myself… I had a discussion about that…

---

Cousins: And that she had glassy eyes?

Burke:   Yeah

Cousins:  is there any other, from your experience… why she could have had glassy eyes or long  shifts, quick shifts? I'm saying is there any other reason that you could suspect other than drugs?

Burke:   No

Cousins:  No, so it was, for you, you immediately suspected drugs?

Burke:  Yeah, she was just very fast moving, fast paced.

---

Cousins:  do you have any information in relation to an allegation Senior Constable Barns had a  drinking problem?

Burke:  Not a drinking problem, no… But I will tell you something. From seeing her from Surfers Paradise to coming here, and she seemed very also hyperactive, like, look in the morning, you know, like I said. I've known Barnes. I got to know her a little bit and here she was different. There was something different that could be escalated from obviously she's got a lot of other stuff going on… like walking into work she would go - she would just be very quick. I'd go, 'Hi Barnes, how are you going?' Like gearing up for example and she'd go very quick like "Hi, hi" very very quick with me. You know what I mean? It’s like are you okay? I remember even asking her…

  1. [122]Detective Cousins' statement to the Second Respondent that 'no one identified that she had a drug look' and that 'you appear to be the only one' does not accurately represent the information provided by the officers in the interviews.
  1. [123]The Appellant suggests that when considered in context, the comments by SC Burke suggested that all of the matters described could be explained by other things going on in SC Barnes' life. SC Burke said:

Burke:  Yeah. See, and, see, what I don't understand was – I didn't understand the full extent of that, like, what was going on there. Like, do you know what I mean? That is massive. Do you know what I mean? And, so, you know, it kind of makes sense now, like, before – like, that she could be very worked up. You know what I mean?[80]

  1. [124]I am not persuaded that SC Burke's response may be taken to mean that she accepted that SC Barnes' conduct could be explained by other things, and hence she did not provide corroboration to the Second Respondent. The comments relied upon outlined in paragraph [123] were vague and unclear. Even when considered in context, it could not reasonably be concluded that SC Burke did not support the Second Respondent's suspicion that SC Barnes may have been abusing alcohol or drugs. If SC Burke had indeed accepted at the time of the interview with Detective Cousins that SC Barnes' behaviour could have been explained by other things, this does not indicate that she did not believe at the time of her discussion with the Second Respondent that SC Barnes may have been misusing alcohol or drugs. The relevant question was not whether SC Burke's judgement could have been different had she known about SC Barnes' broader circumstances, it was whether she had spoken to the Second Respondent about these concerns prior to his email of 4 May 2016.
  1. [125]The Appellant made submissions that although the Second Respondent described SC Barnes as having a 'washed out drug look', neither SC House and Constable Manchee described her in this manner. SC House provided the description that 'she would be very glassed-eyed and wide-eyed some days..' and SC Burke agreed with the 'drug look' description that she was 'foggy-eyed'. The evidence of SC House and Constable Manchee was clear in that they were concerned that SC Barnes may have been under the influence of drugs, and the fact that the exact same indicia was not stated does not suggest that they did not share the Second Respondent's concerns.
  1. [126]Detective Cousins directly misrepresented the evidence of SC Burke, who agreed with the proposition that SC Barnes had a 'washed out drugged look' and did not provide an accurate representation of the officer's evidence to the Second Respondent during his interview. 
  1. [127]Any alleged 'misstatement' by Detective Cousins to the Second Respondent was described by the Appellant as 'nothing more than a blemish in the process'. The Second Respondent submits that this view was not shared by AC Codd under cross-examination:

Counsel: So when Detective Cousins says 'In relation to my interviews with Julie House, Emma Manchee, Ashley Duck, Kim Skinner, Louise Burke, no one identified that she had a drug problem – drug look' and then later he says 'you appeared to be the only one', that's not fair?

AC Codd: That's not an accurate reflection of the interviews with those officers. That's certainly the case.

Counsel: It's not a process that you would want to see happening to a civilian, let alone one of your members?

AC Codd: It's not something I'd like to see happen to anybody.

Counsel: No. It's not good practise?

AC Codd: No.

Counsel: And can I suggest this to you. That one of the reasons it's not good practise is that if you remember and you're being investigated, and you'd nominated five other members of the Police Service who might corroborate your concerns to find out from a Detective Senior Sergeant that they had given you no corroboration at all would heighten your sense of isolation?

AC Codd: It certainly would have an impact and I think it would raise in my mind through my experience questions about them - the value- any validity of the subsequent answers based on that statement. I guess if I was thinking in another world that if somebody then went on to answer questions which were of material value, say, for a criminal matter, they were done so on the basis of any inaccuracy initiating that, I think, that would call into question the validity of that subsequent material.

Counsel: As a legal matter?

AC Codd: If it was in, if it was in the criminal sphere, that's for sure. I know there's some degree of greater latitude when you're talking about discipline in administrative matters, but certainly not the case of fairness - procedural fairness and inaccuracy.

Counsel:  no and it might make you have some lack of confidence in the person doing the questioning?

AC Codd: I guess it could, yes.[81]   

  1. [128]The Appellant submits that the transcripts of the interview were provided with his report as attachments, the report was reviewed internally within ESC and the description of the answers given did not affect AC Codd's decision that the matter should proceed to a disciplinary hearing. The Appellant submits that the Second Respondent did not make any concessions as a consequence of the alleged misrepresentation, and this was not a case where an inculpatory answer was extracted by way of an unfair question.  The Appellant submits that any misstatements about what other officers had witnessed in terms of SC Barnes' behaviour could not rationally influence the answer that the Second Respondent gave about why he did not include matters that he knew about in his email.
  1. [129]The relevant issue is not whether the Second Respondent's subsequent responses in the interview were compromised as a result of the misrepresentation, it is whether the investigation was conducted in a reasonable way. It is clear that the evidence provided by the other officers was misrepresented to the Second Respondent, as confirmed in AC Codd's evidence that it was 'not an accurate reflection of the interviews with those officers. That's certainly the case'. I am not persuaded that the misrepresentation of evidence to the Second Respondent can be dismissed as a 'mere blemish' as per the consideration in Kuenstner v Workers' Compensation Regulator,[82] with the evidence of AC Codd also confirming that this matter related to questions of fairness.
  1. [130]The Second Respondent gave the following evidence of his reaction after being interviewed by Detective Cousins:

I felt that I had been left out to dry by these other officers, that there was no support. Then I was thinking that perhaps they submitted under pressure to his questioning and denied it. I was totally flabbergasted when I walked out of there as to why these other officers had actually given me this information. Then when it actually came down to a record of interview with Mr Cousins, apparently, they didn't say - didn't back up what they had previously told me… it's basically my word against their word. And I thought the information I supplied was correct and the versions they supplied me was correct. And here I am being told they now aren't backing up my version.[83]

  1. [131]The misrepresentation of the evidence of the other officers to the Second Respondent was not reasonable. This had a significant impact on the Second Respondent's health and was the major significant contributing factor to the development of his injury.
  1. [132]Although the decision to interview the Second Respondent constitutes reasonable management action, this action was not taken in a reasonable way as a consequence of the misrepresentation of evidence to the Second Respondent.

Conclusion

  1. [133]The central question in this matter is whether it was reasonable for the Appellant to investigate a complaint by SC Barnes against the Second Respondent relating to his email of 4 May 2016 and if so, was this investigation conducted in a reasonable way.
  1. [134]After receiving the complaint from SC Barnes, the Appellant made the decision to investigate the complaint. The PID Act does not prohibit an investigation into matters disclosed in these circumstances and consequently, the decision by the Appellant to investigate the Second Respondent's email of 4 May 2016 constitutes reasonable management action.
  1. [135]After carefully reviewing the evidence, I am not satisfied that the investigation was conducted in a reasonable way. Whilst I note that an investigation may be imperfect without being considered unreasonable,[84] the misrepresentation of evidence to the Second Respondent was a significant failure and could not constitute management action taken in a reasonable way.  
  1. [136]On the basis that reasonable management action was not taken in a reasonable way, the Second Respondent's injury is not excluded on the basis of s 32(5) of the Act.
  1. [137]For the reasons outlined above, I have determined that:
  1. the Second Respondent suffered a personal injury, that being a psychiatric or psychological disorder described as 'anxiety disorder';
  1. the Second Respondent's injury arose out of, or in the course of, his employment;
  1. the Second Respondent's employment was the major significant contributing factor to his injury; and
  1. the Second Respondent's injury is not excluded by operation of s 32(5) of the Act.

Orders

  1. [138]I make the following orders:
  1. The appeal is dismissed.
  1. I will hear the parties as to costs.

Footnotes

[1] Charters Towers Regional Council v Workers' Compensation Regulator [2019] QIRC 027, [74].

[2] Appellant's closing submissions, [65].

[3] Ibid [66]; Exhibit 25.

[4] Appellant's closing submissions (n 2) [67]; Exhibit 18.

[5] Appellant's closing submissions (n 2) [68].

[6] Second Respondent's closing submissions, [78].

[7] T 4-136, l 38.

[8] T 4-21.

[9] T 4-22, l l5-15.

[10] T 4-23, l 15.

[11] T 4.18; the Appellant ultimately received a fine in the order of $260.00.

[12] T 4-22, l 40.

[13] T 2-30, l 30.

[14] Second Respondent's closing submissions (n 6) [78](l).

[15] T 4-140.

[16] T 4-23, l 15.

[17] Second Respondent's closing submissions (n 6) [78](p).

[18] T 1-134, l 15.

[19] Second Respondent's closing submissions (n 6) [78](r).

[20] Exhibit 18.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Exhibit 19.

[25] Exhibit 25.

[26] Ibid page 4.

[27] T 4-21.

[28] T 4-22, ll 5-15.

[29] T 4-23, l 15.

[30] T 4-23, ll 15-18.

[31] T 4-136, l 38.

[32] T 4-22, l 40.

[33] T 2-30, l 30.

[34] T 1-134, l 15.

[35] T 4-13.

[36] Exhibit 8, Record of Interview between Detective Cousins and Snr Sgt Underwood, l 920.

[37] Exhibit 8, Record of Interview between Detective Cousins and SC House, l 547.

[38] T 4-50.

[39] T 4-10, ll 22-32.

[40] T 4-10, l 37 to T 4-11, l 21.

[41] T 4-22.

[42] T 4-70.

[43] T 4-12.

[44] T 4-13, l 11-13.

[45] T 4-15, ll 1-3.

[46] T 4-15, ll 19-23.

[47] T 4-17, ll 28-33.

[48] [2017] QIRC 088.

[49] Ibid [60], [68].

[50] (2002) 70 QGIG 93, 94.

[51] [2014] ICQ 009.

[52] Ibid [47].

[53] Flori v Winter [2019] QCA 281.

[54] PID Act s 13(3)(a).

[55] PID Act s 13(3)(b).

[56] As determined by the High Court in George v Rockett (1990) 170 CLR 104, 116.

[57] [2019] QCA 281.

[58] Exhibit 3.

[59] Pursuant to PID Act s 66.

[60] If the information does not tend to show the conduct in accordance with PID Act s 13(3)(b).

[61] T 3-34, ll 7-12.

[62] T 2-81.

[63] T 1-23, l 45 to T 1-24, l 5.

[64] Exhibit 8, Record of Interview between Detective Cousins and SC House, ll 140-144.

[65] T 1-114, ll 17-21.

[66] Exhibit 8, Record of Interview between Detective Cousins and Second Respondent, ll 1131-1139.

[67] Ibid ll 795, 1940, 1970, 2190.

[68] Second Respondent's closing submissions (n 6) [41].

[69] T 1-130, ll 20-22.

[70] Exhibit 8, Record of Interview between Detective Cousins and Snr Sgt Underwood, ll 383-386.

[71] Ibid l 419.

[72] Exhibit 8, Record of Interview between Detective Cousins and Sgt Keeling, ll 517-519.

[73] Exhibit 8, Record of Interview between Detective Cousins and SC House.

[74] Exhibit 5.

[75] Exhibit 8, Record of Interview between Detective Cousins and SC House, ll 288-289.

[76] T 2-72, l 30.

[77] Exhibit 2.

[78] Exhibit 8, Record of Interview between Detective Cousins and Second Respondent, ll 1696-1710.

[79] T 4-113, ll 43-44.

[80] Exhibit 2.

[81] T 3-29, l 12 to T 3-30, l 2.

[82] [2016] QIRC 83.

[83] T 4-21, ll 30-42.

[84] Kuenstner v Workers' Compensation Regulator [2016] QIRC 83.

Close

Editorial Notes

  • Published Case Name:

    State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Anor

  • Shortened Case Name:

    State of Queensland (Queensland Police Service) v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 366

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    27 Oct 2021

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
Allwood v Workers' Compensation Regulator [2017] QIRC 88
3 citations
Jump To
Cite 1 - [2017] QIRC 88
Cite 2 - [2017] QIRC 88
Cite 3 - [2017] QIRC 88
Charters Towers Regional Council v Workers' Compensation Regulator [2019] QIRC 27
2 citations
Jump To
Cite 1 - [2019] QIRC 27
Cite 2 - [2019] QIRC 27
Davis v Blackwood [2014] ICQ 9
3 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Cite 3 - [2014] ICQ 9
Flori v Winter(2019) 3 QR 22; [2019] QCA 281
3 citations
Jump To
Cite 1 - [2019] QCA 281
Cite 2 - [2019] QCA 281
Cite 3 - [2019] QCA 281
George v Rockett (1990) 170 CLR 104
2 citations
Jump To
Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
Kuenstner v Workers' Compensation Regulator [2016] QIRC 83
3 citations
Jump To
Cite 1 - [2016] QIRC 83
Cite 2 - [2016] QIRC 83
Cite 3 - [2016] QIRC 83
WorkCover Queensland v Kehl (2002) 70 QGIG 93
2 citations
Jump To
Cite 1 - (2002) 70 QGIG 93
Cite 2 - (2002) 70 QGIG 93

Cases Citing

Case NameFull CitationFrequency
Kattenberg v State of Queensland (Queensland Health) [2022] QIRC 1021 citation
Kevesther Pty Ltd v Workers' Compensation Regulator [2024] QIRC 1952 citations
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Neville Stretton [2023] ICQ 152 citations
1

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