Flori v Carroll (No. 3)[2022] QIRC 328

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Introduction

1. [1]
   This decision assumes familiarity with the decision in Flori v Carroll and Anor.^[1] The background set out in that decision, at paragraphs [1]-[10], should be read with these reasons.

2. [2]
   Before this Commission, Mr Flori contends that:

• the reason for the decision of the Commissioner of the Queensland Police Service ('the Commissioner'), to defer making a decision about the honours and awards ('the awards') he seeks:

1. –was a detriment within the meaning of s 40(1)(b) of the Public Interest Disclosure Act 2010 ('the PIDA'); and
2. –was taken because he was involved in a proceeding under the PIDA against the State of Queensland and other persons ('the civil proceedings') in contravention of s 40(1)(b) of the PIDA;^[2] and

• as a consequence, the Commissioner's decision was a reprisal, or was the taking of a reprisal, within the meaning of s 40(3) of the PIDA^[3] for which he has suffered damage within the meaning of s 209(1)(b) of the Anti-Discrimination Act 1991 ('the ADA').^[4]

3. [3]
   Mr Flori seeks various declarations or orders to that effect and an order that the Respondents pay him an amount of compensation, to be assessed by the Commission, for the damage caused by the contravention of the PIDA he contends has occurred.^[5]

4. [4]
   The Commissioner and the State deny Mr Flori's allegations and relevantly contend that the Commissioner's decision was because findings of fact made in the civil proceedings could alter the determination of whether Mr Flori had engaged in diligent and ethical service which would significantly affect the decision as to whether he was eligible for the awards.^[6]

5. [5]
   The questions for my determination are:

• did the Commissioner's decision contravene s 40(1)(b) of the PIDA so that the Commissioner engaged in a reprisal against Mr Flori within the meaning of s 40(3) of the PIDA? and, if so
• what relief should be granted to Mr Flori?

6. [6]
   To answer the first question, the issues are:

• whether or not the Commissioner's decision was because Mr Flori was involved in a proceeding under the PIDA against any person; and, if so
• whether or not the Commissioner's decision was a 'detriment' within the meaning of the PIDA.

7. [7]
   For the reasons given below, I find that the Commissioner's decision did not contravene s 40(1)(b) of the PIDA, the consequence of which is that the Commissioner did not engage in a reprisal against Mr Flori within the meaning of s 40(3) of the PIDA.

The relevant facts

8. [8]
   Mr Flori gave oral evidence as well as evidence by affidavit.^[7] Mr Flori was not cross‑examined.

9. [9]
   There is no dispute about the civil proceedings. That is:

• on 27 April 2017, Mr Flori, pursuant to s 42 of the PIDA, commenced proceedings in the Supreme Court, alleging that he had been the subject of a reprisal, within the meaning of s 40 of the PIDA, because he had made a public interest disclosure within the meaning of s 11 of the PIDA; and
• those proceedings were, on 19 June 2020, transferred to the District Court.^[8]

10. [10]
    In oral submissions, the Commissioner and the State did not dispute that Mr Flori, by the civil proceedings, was involved in a proceeding under the PIDA against any person within the meaning of s 40(1)(b) of the PIDA.

11. [11]
    It is also not in dispute that:

• on 2 November 2017, Mr Flori resigned as a police officer;^[9] and
• by email dated 8 November 2019, Mr Flori emailed the Commissioner seeking her support in obtaining any outstanding honours and awards earned by him during his 28 years of service as a police officer, following the absence of any response from his email sent on 29 March 2019 to the Honours and Awards Unit of the Queensland Police Service ('the Service') about the same matter.^[10]

12. [12]
    The Commissioner initially responded to Mr Flori's 8 November 2019 email by letter dated 12 December 2019. In that letter, the Commissioner relevantly stated:

I refer to your e-mail of 8 November 2019, seeking assistance in relation to outstanding awards, a certificate of service and retired police identification.

In relation to outstanding awards and a Commissioner's Certificate of Service, I do not intend to make a determination on your eligibility about any of these matters until all of your court appeals are finalised. This is due to your court matters being related to a complaint which you were subject to at the time of your resignation.

…

Once all your court matters have been finalised, I will provide you with a further response in relation to your eligibility for any outstanding awards and a Commissioner's Certificate of Service.^[11]

13. [13]
    Following a decision by the Court of Appeal in relation to the civil proceedings, by further letter dated 17 January 2020 to Mr Flori, the Commissioner stated:

I refer to your email of 6 January 2020 and my earlier correspondence of 12 December 2019 in which I advised I do not intend to make a determination on your eligibility for any Honours and Awards until your court proceedings are finalised.

While I note your view that the Court of Appeal decision found in your favour, I am advised that while the Court of Appeal decision set aside the decision of the Supreme Court on the preliminary question, this dealt with a discrete point of the proceedings but does not resolve the substantive issues in the proceedings.

I have been advised that while the State of Queensland has determined not to appeal the decision, the matter will now proceed to trial and will consider issues relating to the actions undertaken by yourself and others, including the Court making findings of fact which may affect the assessment of your eligibility for any Honours and Awards.

As per my earlier correspondence, I do not intend to further consider your eligibility for any Honours and Awards until your court proceedings are finalised.^[12]

14. [14]
    Mr Flori's evidence was that when he first read the Commissioner's letter, he suffered a series of unpleasant emotions, in that, mainly, he was deeply offended, hurt and angry and '… not a little intimidated.'^[13]

15. [15]
    Mr Flori further stated that:

• from his perspective, the Commissioner's refusal to make a determination about his eligibility for the awards until the civil proceedings were finalised was '… high‑handed; very unfair; and failed to meet the Service's own published (stated) values, of always doing the right thing; making objective decisions; and treating people with dignity and respect';
• he interpreted the Commissioner's correspondence as '… an implied threat, "you withdraw your action and I will make a decision." '; and
• from his perspective, the Commissioner's decision was an '… act of bastardry.^[14]

16. [16]
    In his oral evidence, Mr Flori stated that, after 28 years of service, the Commissioner's decision has had a profound effect on him because, taking into account the difficult work he had to perform, the dangers and the very difficult circumstances to which he was exposed as a police officer, and the time he lost spent with his family, the awards were significant to him.^[15]

17. [17]
    The evidence of Senior Sergeant Melanie Wilkins, Manager of the Honours and Awards Unit of the Service, was that the Queensland awards and honours have no statutory basis and it was in the discretion of the Commissioner as to whether they would be awarded to a member of the Service.^[16]

18. [18]
    Inspector Alisa La Pila gave evidence that while the Commissioner did not draft the letters to Mr Flori dated 12 December 2019 and 17 January 2020, it was the Commissioner's decision to send them.^[17]

The relevant legislative provisions

19. [19]
    Section 40 of the PIDA provides:

40 Reprisal and grounds for reprisal

3. (1)
   A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that-

1. (a)
   the other person or someone else has made, or intends to make, a public interest disclosure; or
2. (b)
   the other person or someone else is, has been, or intends to be, involved in a proceeding under the Act against any person.

3. (2)
   An attempt to cause detriment includes an attempt to induce a person to cause detriment.
4. (3)
   A contravention of subsection (1) is a reprisal or the taking of a reprisal.
5. (4)
   A ground mentioned in subsection (1) as the ground for a reprisal is the unlawful ground for the reprisal.
6. (5)
   For the contravention mentioned in subsection (3) to happen, it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission.

20. [20]
    Schedule 4 to the PIDA provides the following definition of the noun 'detriment':

detriment includes-

1. (a)
   personal injury or prejudice to safety; and
2. (b)
   property damage or loss; and
3. (c)
   intimidation or harassment; and
4. (d)
   adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business; and
5. (e)
   financial loss; and
6. (f)
   damage to reputation, including, for example, personal, professional or business reputation.

Did the Commissioner's decision contravene s 40(1)(b) of the PIDA so that the Commissioner engaged in a reprisal against Mr Flori within the meaning of s 40(3) of the PIDA?

21. [21]
    The first issue to consider is whether or not the Commissioner's decision was because Mr Flori was involved in a proceeding under the PIDA against any person.

Was the Commissioner's decision because Mr Flori was involved in a proceeding under the PIDA against any person?

22. [22]
    This requires a consideration of the construction of s 40(1)(b) of the PIDA and then the application of the facts.

The parties' submissions

Mr Flori

23. [23]
    In oral submissions, Mr Flori submitted that the whole basis of his case was that the Commissioner's decision contravened s 40(1)(b) of the PIDA because:

• the purpose or object of the provision was '… don’t shoot the messenger';^[18]
• section 40(1)(b) of the PIDA strictly provides that a person must not cause detriment to another person because the other person is involved in a proceeding under the PIDA against any person;^[19]
• if he had not commenced the civil proceedings under the PIDA, then the Commissioner's decision, namely, deferring the decision to issue him the awards, would not have been made;^[20] and
• by those facts, the Commissioner contravened s 40(1)(b) of the PIDA, which, by the application of s 40(3) of the PIDA, meant the Commissioner had taken a reprisal against him.^[21]

24. [24]
    Mr Flori, in written submissions, submitted that, having regard to s 40(5) of the PIDA, even if the Commissioner was motivated by other factors, the fact that his involvement in a proceeding under the PIDA was a substantial part of the Commissioner's reasoning, as evidenced by the Commissioner's letters, was sufficient to establish a contravention.^[22] Mr Flori made the same point in this oral submissions.^[23]

The Commissioner and the State

25. [25]
    In oral submissions, Mr McLeod QC, who appeared on behalf of the Respondents:

• referred to the objects of the PIDA in s 3 of that Act and submitted that s 40(1)(b) of the PIDA is not one, as contended by Mr Flori, that provides for strict liability;^[24] and
• submitted that there was no evidence to warrant any inference that the Commissioner's decision was because of the civil proceedings.^[25]

The construction of s 40(1)(b) of the PIDA

26. [26]
    I am not persuaded that s 40(1)(b) of the PIDA operates in the way contended by Mr Flori.

27. [27]
    Mr Flori submits that because the Commissioner actually knew he had commenced the civil proceedings, then any detriment caused by the Commissioner to him was a reprisal in contravention of s 40(1)(b) of the PIDA, irrespective of the Commissioner's motivation.

28. [28]
    I cannot accept that submission.

29. [29]
    Having regard to the purpose of s 40 of the PIDA, it is obvious that the motivation of the first mentioned person in respect of their impugned act or omission is the principal consideration in the application of that provision.

30. [30]
    Relevantly to the present case, one of the clear purposes of s 40(1)(b) of the PIDA is to protect the second mentioned person, who is involved in a proceeding under the PIDA against any person, against detrimental retaliation by the first mentioned person, because of the second mentioned person's involvement in such a proceeding. Clearly, an examination of the motive of the first mentioned person is material to the provision's purpose.

31. [31]
    Further, s 40(5) of the PIDA - which provides that it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission - expressly directs attention to the motivation of the first mentioned person.

32. [32]
    This analysis of the construction of s 40(1)(b) of the PIDA is consistent with the approach taken to the construction of other similarly worded whistleblower legislation and to that of other legislation with a similar object, namely, to prohibit retaliatory, detrimental conduct, although in respect of different subject matters.

33. [33]
    The predecessor to s 40 of the PIDA was s 41 of the Whistleblowers Protection Act 1994 which provided:

41 Reprisal and grounds for reprisal

3. (1)
   A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that, anybody has made, or may make, a public interest disclosure.
4. (2)
   An attempt to cause detriment includes an attempt to induce a person to cause detriment.
5. (3)
   A contravention of subsection (1) is a reprisal or the taking of a reprisal.
6. (4)
   A ground mentioned in subsection (1) as the ground for a reprisal is the unlawful ground for the reprisal.
7. (5)
   For the contravention to happen, it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission.

34. [34]
    In Howard v State of Queensland,^[26] Thomas JA^[27] relevantly held that, in respect of s 41(1) of the Whistleblowers Protection Act 1994 the '… use of the so-called plain English ‘‘because’’ provides a wide and imprecise link, but the section seems to require that the offender’s actions be motivated by some state of knowledge or belief that the target person has acted in a certain way.'^[28]

35. [35]
    The cognate provision in s 3 of the Public Interest Disclosure Act 1994 (ACT) was construed in a similar way. In Berry v Ryan,^[29] Crispin J held:

1. 21
   The term "unlawful reprisal" is defined by s 3 of the Public Interest Disclosure Act to mean:

"... conduct that causes, or threatens to cause, detriment -

1. (a)
   to a person in the belief that any person has made, or may make a public interest disclosure; or
2. (b)
   to a public official because he or she has resisted attempts by another public official to involve him or her in the commission of an offence."

1. 22
   The term "detriment" is defined to mean:

"(a)  injury, damage or loss;

2. (b)
   intimidation or harassment; or
3. (c)
   discrimination, disadvantage or adverse treatment in relation to career, profession, employment, trade or business."

1. 23
   Whilst par (a) of the definition of "unlawful reprisal" uses the phrase "in the belief" rather than the word "because" which is used in par (b), it is necessary, in my opinion, that the conduct said to constitute the unlawful reprisal occur because of such a belief. Whilst I accept that there may be dangers in seeking to interpret a statutory definition by reference to the term being defined rather than vice versa, that seems clear from the very concept of a "reprisal". This construction also seems to accord with the overall scheme of the Public Interest Disclosure Act and the obvious legislative intention of protecting whistle blowers from having action taken against them as a consequence of making public interest disclosures. It is certainly clear that par (b) is directed to the issue of motivation and it would seem incongruous if par (a) were to be interpreted as requiring mere belief. Furthermore, if such a causal requirement were not to be implied then once a person had made a public interest disclosure it would forever remain unlawful for anyone with the requisite belief to take action against that person even for entirely unrelated and perhaps compelling reasons. Mr Everson who appeared for the plaintiff did not contend that the provision should be so interpreted.

36. [36]
    In my view, these decisions support the Respondents' contention, that in the application of s 40(1)(b) of the PIDA, the focus is on the motivation of the first mentioned person.

37. [37]
    The use of the word 'because' and the presence of a provision similar to that of s 40(5) of the PIDA, and their effect on the construction of a statute prohibiting conduct similar in nature to that of reprisal action in the PIDA, was examined by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay, ('Barclay').^[30]

38. [38]
    In Barclay, the focus was on s 346 of the Fair Work Act 2009 which relevantly provided:

A person must not take adverse action against another person because the other person:

1. (a)
   is … an officer … of an industrial association; or
2. (b)
   engages, or has at any time engaged … in industrial activity within the meaning of paragraph 347(a) or (b);^[31]

39. [39]
    The question in that case was whether the appellant's suspension of, and the commencement of a disciplinary proceeding against, the respondent employee was because the employee was an officer of the Australian Education Union and because the employee had engaged in particular kinds of industrial activity.^[32]

40. [40]
    Justices Gummow and Hayne, in considering s 346 of the Fair Work Act 2009, relevantly held:

1. 100
   The application of s 346 turns on the term “because”. This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).
2. 101
   The use in s 346(b) of the term “because” in the expression “because the other person engages … in industrial activity”, invites attention to the reasons why the decision‑maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge.^[33]

41. [41]
    Similarly, Heydon J relevantly stated:

1. 140
   Dr Louise Harvey was the appellant’s Chief Executive Officer. Mr Greg Barclay, the first respondent, was an employee of the appellant. He was also an officer of the second respondent, a trade union. She suspended him from duty and took other measures against him. The question was whether she did this “because” he had engaged in industrial activity within the meaning of s 346 of the Fair Work Act 2009 (Cth) (the Act). The word “because” requires an investigation of Dr Harvey’s reasons for her conduct. Section 360 provided that "a person takes action for a particular reason if the reasons for the action include that reason". The Explanatory Memorandum makes it clear that to satisfy s 360 the particular reason must be an "operative or immediate reason for the action".^[34]

What is the evidence about the motivation of the Commissioner?

42. [42]
    The onus of proving the contravention of s 40 of the PIDA is on Mr Flori.

43. [43]
    The evidence of the Commissioner's correspondence of 12 December 2019 and 17 January 2020 was led by Mr Flori. In oral submissions, Mr Flori confirmed that he was not asking the Commission to go behind the reasons, expressed in the Commissioner's correspondence of 12 December 2019 and 17 January 2020, for the Commissioner's decision.^[35] That is, Mr Flori accepted that the statements made by the Commissioner in the correspondence is evidence of the facts asserted in the correspondence.

44. [44]
    Therefore, the direct evidence before the Commission is that the Commissioner's decision was for the reason contained in that correspondence, namely, that there may be facts found from the civil proceedings that may affect the Commissioner's assessment of Mr Flori's eligibility for the awards he seeks.

45. [45]
    In my view, having regard to that evidence, the mere fact that Mr Flori was involved in the civil proceedings was not the reason for the Commissioner's decision.

46. [46]
    I have no doubt about Mr Flori's evidence about the effect the Commissioner's decision had on him. Indeed, that evidence was unchallenged. However, that is not enough to establish a contravention of s 40(1)(b) of the PIDA and a reprisal within the meaning of s 40(3) of the PIDA.

Conclusion

47. [47]
    The question in the present proceeding is whether the Commissioner contravened s 40(1)(b) of the PIDA and, in doing so, engaged in a reprisal against Mr Flori within the meaning of s 40(3) of the PIDA.

48. [48]
    For the reasons I have given, the answer to that question is no.

49. [49]
    Mr Flori's complaint must be dismissed.

Order

50. [50]
    I make the following order:

The Complainant's complaint is dismissed.