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‘And the medal goes to…’ – QIRC clarifies that post-employment conduct still within jurisdiction

The Queensland Industrial Relations Commission (QIRC) has delivered a significant decision which considers the jurisdiction for hearing a complaint on alleged reprisal action taken post-employment.

In Flori v Carroll and Anor [2022] QIRC 034, Deputy President Merrell concluded that a complaint by a former police officer about a decision to defer issuing him medals pending the outcome of various proceedings brought by him was nevertheless properly described as “… relating to work or the work-related area” and capable of being dealt with in the QIRC.

On 2 November 2017, after 28 years of service, the police officer complainant resigned from the Queensland Police Service. Two years after his resignation, he requested that the Police Commissioner issue to him certain honours and awards within her discretion to issue.

In December 2019, the Police Commissioner responded that she did not intend to make a determination about the officer’s eligibility for the awards until various ‘court appeals’ of his were finalised.

The officer filed a complaint in the Queensland Human Rights Commission alleging that he had made a public interest disclosure and the Police Commissioner’s decision to defer was reprisal action.

The Public Interest Disclosure Act 2010 (Qld) (PID Act) provides that a complaint may be dealt with under the Anti-Discrimination Act 1991 (Qld) (AD Act) as if it was a complaint about an alleged contravention of that Act.

After a failed conciliation, the Queensland Human Rights Commissioner referred the complaint to the QIRC.

The QIRC can only deal with complaints relating to work or the work-related area, otherwise, the matter ought be dealt with by the Queensland Civil and Administrative Tribunal (QCAT).

An application was brought by the State seeking that the proceedings be transferred to QCAT on the basis that the complaint was not a “work-related matter” and that the Human Rights Commissioner should have, and could only have, referred the complaint to QCAT.

The State submitted that “for a person to have a legitimate complaint of unlawful discrimination in the work area, the impugned act or omission must occur while the person is actually working pursuant to one of the categories of ‘work’” as defined in the AD Act.

In construing the provisions of the AD Act, having regard to the explanatory notes to the Industrial Relations Bill 2016 and to the Minister’s second reading speech, DP Merrell observed that “the purpose of the definition of ‘work-related matter’ is to provide for a wide or broad relationship between a complaint and the work area so that the matter would be justiciable by the Commission as opposed to QCAT”.

This statutory context “does not suggest a narrow relationship between the complaint and the work area, such that a work-related matter is one, as contended by the Respondents, only where there is a complaint about acts or omissions that occurred when a person was actually employed”.

DP Merrell ultimately concluded that there was a sufficient relationship or connection with work in that:

  • the complainant was a former police officer
  • the ‘court appeals’ concerned conduct alleged to have been engaged in by the officer while employed
  • the public interest disclosure was made while he was an employee and because of his service as an employee, he may be entitled to be issued the awards.

Simply that the complainant did not make the request for the awards until after his employment ended did not mean the complaints were not relating to work or the work-related area.

With the State unsuccessful, the matter will be heard by DP Merrell.

The decision clarifies the scope of what matters may be dealt with by the QIRC under the AD Act (and the PID Act) which should now be understood to include complaints about alleged reprisal or adverse treatment that occurs post-employment.

Read the decision.

This article appears courtesy of the Queensland Law Society Occupational Discipline Law Committee. Patrick Turner is a Senior Associate at Maurice Blackburn Lawyers and a member of the committee.

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