Haw v State of Queensland

Industrial Relations Act 2016 (Qld) s 526A, s 562B

Public Sector Act 2022 (Qld) s 130

Amaya v State of Queensland (Queensland Health) [2022] QIRC 117

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16

Henning v State of Queensland (Queensland Treasury) [2023] ICQ 9

Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97

Schubert v State of Queensland (Queensland Health) [2024] QIRC 128

Smith v State of Queensland (Department of Education) (No. 2) [2022] QIRC 398

[1] Mr Robert Haw, the Appellant, is a Senior Firefighter with the Respondent ('Fire Department'). On 12 January 2024, he was appointed to the higher rank of Station Officer in what is referred to as the 'Gold Coast Zone'. This elevation in rank was expressly conditional upon Mr Haw completing approved training in the 'Officer Development Program' within the following year. Mr Haw consequently enrolled in the Officer Development Program ('2024 course'). The 2024 course is a year-long course that is broken into two training periods to make training time a little more manageable for employees.

[2] According to the terms of the Officer Development Program, participants only have two chances at successful completion of any part of the program before they are removed from the program. On 29 August 2024, Mr Haw undertook a particular assessment piece as part of the 2024 course. He was advised the next day that he had received the grade of 'not yet competent'. About a month later, on 23 September 2024, Mr Haw re-sat that particular piece of assessment and was notified that day that he was unsuccessful in the 're-sit'.

[3] Because the course itself had changed, there was no way Mr Haw could be offered another re-sit for that module in a later running course like some of his colleagues had been in earlier courses. The introduction of a new course at that time meant that once Mr Haw had failed the module twice, he had to complete the newly introduced course.

[4] This meant there was no way Mr Haw could satisfy the condition that he complete the Officer Development Program within a year of his appointment to the rank of Station Officer. Mr Haw was thus returned to his original Senior Firefighter rank and pay level. Mr Haw did not appeal that decision.

[5] Enrolments for the next Officer Development Program opened on 9 September 2024 and closed on 22 September 2024. This was the intake process for what I will refer to as the '2025 course'. It can be noted that the intake for the 2025 course closed the day before Mr Haw knew he had not passed the re-sit and would be removed from the 2024 course. Along the way of this dispute, Mr Haw argued that it was unfair that he was not able to take up a position in that 2025 course. However, that seems to me to be misguided. Even if Mr Haw had taken up enrolment in the 2025 course, he would still have been unable to satisfy the condition in his contract that he complete the training in 2024. He would still have been moved back to a Senior Firefighter level.

[6] By the time the next available course came up for enrolments, availability of Station Officer positions in the Gold Coast Zone was not what it had been. Mr Haw had to take up a position in a course based at the adjacent zone of West Moreton. As well, the position in that course only made Mr Haw eligible for a Station Officer position. Under his previous arrangement, Mr Haw actually held that position and did so based at his preferred location on the Gold Coast, provided he complete the course as agreed within the period of one year.

[7] It is this change in circumstances, specifically, the lost opportunity, that Mr Haw is most aggrieved about. That is further compounded by only just missing out on the 2025 course enrolment and the observation that those undertaking earlier courses, before the change, were allowed further chances to completed modules they failed, whereas Mr Haw was not. However, none of those decisions by the Fire Department are the subject of this appeal.

[8] On 7 November 2024, Mr Haw lodged a formal complaint about his assessment in the failed unit of the 2024 course. His application essentially sought to overturn the 'not yet competent' result that resulted in his removal from the 2024 course.

[9] In that 7 November 2024 complaint, Mr Haw made a number of factual allegations about how the assessment was carried out, including conduct of one particular officer involved in the running of the training. Those allegations were investigated and, on 29 November 2024, Superintendent Andrew Richards delivered to Mr Haw an 'outcome advice'. For present purposes, it is sufficient to observe that Superintendent Richards found that the factual allegations were not substantiated.

[10] Prior to receiving the 29 November 2024 outcome advice, on 19 November 2024, Mr Haw lodged another formal complaint which was more focused on him missing out on the 2025 course based at the Gold Coast. In broad summary, Mr Haw alleged that he had been treated unfairly and disadvantaged through the above-mentioned Officer Development Program. Specifically, Mr Haw alleged that he did not have the opportunity for an extension beyond the two above-mentioned attempts at the relevant training module. Mr Haw pointed to others being afforded the ability to have 'a second run at the process', some multiple times. Mr Haw also alleged that the process was not fairly delivered and that he had been prevented from applying and entering a subsequent program for 2025 at the Gold Coast Zone because no decision had been made on his 2024 course situation in time for him to be able to do so. He also alleged it was unfair that his conditional contract as a Station Officer was not extended.

[11] On 23 January 2025, Superintendent Richards delivered an 'outcome advice' decision in relation to Mr Haw's 19 November 2024 complaint. That decision is not the decision under appeal; however, it is relevant that Superintendent Richards found the allegations were not substantiated. Of some note regarding the complaint about not extending the conditional contract as a Station Officer, Superintendent Richards observed that Mr Haw never formally applied for an extension.

[12] On 10 February 2025, Mr Haw lodged a formal review request in relation to Superintendent Richards' 23 January 2025 outcome advice. In the review request, Mr Haw alleged Superintendent Richards lacked impartiality and due diligence. Mr Haw alleged that the outcome advice was dismissive in its findings and that there was a lack of transparency to the investigation of his complaints, also alleging witnesses he had named were not contacted.

[13] On 19 March 2025, Acting Assistant Commissioner Enes Seferovic ('AAC Seferovic') delivered an 'Internal Review Outcome Advice' in response to Mr Haw's 10 February 2025 review request. It is this decision by AAC Seferovic that Mr Haw appeals.

[14] This appeal is pursuant to s 130 of the Public Sector Act 2022 (Qld) ('PS Act'). Such appeals are a review of the relevant decision, not a rehearing of the matter on its merits.[1] This process cannot reach back into the history presented by an appellant and undo that which is not actually the outcome of a decision that is properly before the Commission on appeal.

[15] So this appeal cannot undertake an investigation into Mr Haw's earlier allegations of fact about what happened in the 2024 course. This appeal cannot explore whether in fact Mr Haw was unfairly treated when assessed in that module, or when he was put back to the rank of Senior Firefighter, or when he missed out on the 2025 course at the Gold Coast Zone. Nor can the decision to not extend Mr Haw's contract as a Station Officer be the subject of this appeal. Even Superintendent Richards' 23 January 2025 outcome advice is beyond the scope of this appeal.

[16] It is only AAC Seferovic's review of Superintendent Richards' 23 January 2025 outcome advice that can be considered in this appeal. It needs to be remembered that it was a review of another decision. The relevant test in this appeal is whether AAC Seferovic's decision was fair and reasonable. Answering that question requires considering what regard he had to Superintendent Richards' handling of the complaint and his decision but it is not a rehearing of the original complaints. The focus is on whether AAC Seferovic's decision was fair and reasonable.

[17] What constitutes 'fair and reasonable' is an objective test. In Colebourne v State of Queensland (Queensland Police Service) (No. 2),[2] his Honour, Merrell DP, observed that the phrase 'fair and reasonable' needs to be given its plain meaning. It is not the same as the legal standard of reasonableness in judicial review decisions.[3] Nor is it a question of considering whether the relevant decision was unreasonable having regard to the legal standard of reasonableness.[4]

[18] Decisions that reach conclusions that are not reasonably open are prone to being set aside on appeal on the basis they were not fair and reasonable.[5] However, the Commission's role is not to a impose its own decision over one that was reasonably open to the decision maker, even where the Commission might have decided the matter differently.[6] As his Honour, Davis P, observed in Henning v State of Queensland (Queensland Treasury):[7]

[e]rrors in the process of making the decision, or errors in the reasoning in making the decision may vitiate the decision. However, what is under challenge is the decision.

Whether to not hear the matter under s 562A IR Act

[19] An issue arose from the manner in which Mr Haw has framed his appeal. There was also a further development when, on 10 March 2025, Mr Haw accepted placement into a subsequent Station Officer Program.

[20] The first issue arises because of the limited scope of these appeals as I have described above. Mr Haw has framed his appeal such that a great deal of his submissions are directed towards overturning decisions that caused him to miss out on the Gold Coast position due to failing the 2024 course and not being offered a place in the 2025 course, or an extension to his Station Officer contract. But none of that can be appealed because none of those outcomes, or decisions, were handed down in AAC Seferovic's review decision of 19 March 2025.

[21] The second issue is that the practical utility of the Commission actually hearing the appeal is questionable given the fact that a large part of what Mr Haw's appeal focuses on is something which he has now obtained, or at least a version of it. That is, another chance at completing the course, albeit not at his preferred location on the Gold Coast, and therefore another chance at obtaining the rank of Station Officer.

[22] Returning Mr Haw back to where he was before the failed 2024 course is not something the Commission could order. A finding that AAC Seferovic's decision needs to be carried out again is very unlikely in my opinion to cause the Fire Department to reconsider the decision to not extend the Station Officer contract at the Gold Coast. That is certainly not something the Commission could order in a case like this one. Any realistically available remedy will fall well short of any of the sorts of remedies Mr Haw is seeking in this appeal, or is mostly making submissions about.

[23] Subsection 562A(3)(b) of the Industrial Relations Act 2016 (Qld) ('IR Act') relevantly provides that the Commission may decide to not hear a public service appeal if it reasonably believes (after asking the appellant to establish by oral or written submissions that they have an arguable case for the appeal) that the appeal is misconceived or lacking in substance, or should not be heard for another compelling reason. I called the matter on for a mention hearing, discussed this concern and directed the parties to make submissions about whether the commission should exercise the discretion under s 562A of the IR Act to not hear the appeal. I directed the parties' attention to the decision of his Honour, Merrell DP, in Smith v State of Queensland (Department of Education) (No. 2) [2022] QIRC 398 as an example of my concerns around this aspect of practical utility.

[24] In his submissions on the s 562A issue, Mr Haw generally argues that the practical utility of hearing his appeal is that setting aside the decision in question would 'place an impetus on the Respondent to make a straightforward administrative decision to continue the Appellant's placement in the Gold Coast Zone at the conclusion of the course where the [Applicant] is currently employed.'

[25] I cannot accept that any such force could be brought to bear on the Fire Department even if I were to find AAC Seferovic's internal review outcome advice was not fair and reasonable. That is not something that is within the power of the Commission to order and it is very unlikely, albeit theoretically possible, that overturning AAC Seferovic's decision would lead to, let alone cause, such a result. That is because a second review of Superintendent Richards' investigation and outcome advice by someone other than AAC Seferovic may reach a different view to that AAC Seferovic reached. But that is not a certainty, and it is not something that would guarantee the Fire Department would put Mr Haw back into a Station Officer position in the Gold Coast Zone when presently no such positions are vacant.

[26] Mr Haw also argues that a 'direction from the Commission that [he] was not treated fairly would naturally require some remedy from the Respondent.' Mr Haw further submits that the Commission is without any limitation whatsoever on the directions available to it if his appeal of AAC Seferovic's 19 March 2025 internal review outcome advice was to succeed. That submission must be rejected for the reasons already discussed. Quite the opposite is the reality in that the Commission is very limited in what remedies it can deliver upon any finding that a decision is not fair and reasonable.

[27] Mr Haw submits that the Commission ought to substitute its own decision and thereby uphold his original grievance thus allowing, or perhaps ordering, Mr Haw be placed as a Station Officer in the Gold Coast Zone, rather than the West Moreton Zone, after he has completed the course he is currently undertaking. That submission too must be rejected. Those orders are not something that the Commission has power to make, even if it were to find that the relevant decision was not fair and reasonable in this case. The decisions that brought about those outcomes were not appealed. The appeal of AAC Seferovic's 19 March 2025 internal review outcome advice cannot reach back in time to effectively become an appeal of those earlier decisions.

[28] In his reply submissions on the s 562A issue, Mr Haw repeats his earlier submissions arguing that there is practical utility in a hearing because it may deliver a decision that, in my opinion, cannot come from this appeal as it is outside the power of the Commission. That submission also rests upon the misconceived notion that a successful appeal of AAC Seferovic's 19 March 2025 internal review outcome advice could result in a decision that returns Mr Haw to a Station Officer role in the Gold Coast Zone. That submission must be rejected.

[29] The Fire Department submits that Mr Haw would have stayed at the Gold Coast Zone if he had passed the 2024 course. It says that there were no vacancies at the Gold Coast when Mr Haw became eligible to reapply to sit for the program again. The Fire Department further submits that there is no practical utility in a hearing in the circumstances where:

(a) Mr Haw is already doing the course that he complains about being removed from;

(b) the Commission cannot interfere with the earlier decisions because they are out of time and beyond the reach of this process; and

(c) as a best case scenario, any order the Commission could make could only be either that AAC Seferovic's decision be re-done or substituted for another review of Superintendent Richards' decision by the Commission.

[30] The Fire Department also argues that Mr Haw's seeking of orders and expressing concerns about the location of his current training program are now extraneous given Mr Haw has applied for and has accepted a place in the Station Officer Program.

[31] The Fire Department further submits that by the time this appeal is heard, it will very likely be the case that Mr Haw has completed that training. Again, the point pressed here is that there is no practical utility in any decision, noting the fact that the Commission cannot overturn any of those earlier decisions. There is some force to these submissions. But there is something that has been overlooked, or perhaps overshadowed by all of these arguments.

[32] All of Mr Haw's submissions focusing on the unachievable outcome of this process being reinstating him into a Station Officer role in the Gold Coast Zone virtually obscured an otherwise worthy argument that was embedded within his outline accompanying his Form 89 Appeal notice. Mr Haw argues that it was the failure to investigate his grievances that has brought him to this point of an appeal of AAC Seferovic's decision. It was AAC Seferovic's role in the process to review Superintendent Richards' decision. That included assessing whether Superintendent Richards fairly and reasonably reached his conclusions by properly investigating the grievances. This ground of appeal is inelegantly expressed, but it is clearly focused on AAC Seferovic's decision regarding whether Superintendent Richards properly investigated and decided the grievances. That includes the allegation that Superintendent Richards was operating under a conflict of interest and should have recused himself from the review and failed to follow up with witnesses.

[33] I have reviewed both Superintendent Richards' outcome advice of 21 January 2025 as well as AAC Seferovic's review of it. The latter is starkly brief. It is devoid of anything that could be objectively described as reasons or reasoning. It does not even mention any of Mr Haw's complaints about Superintendent Richards' decision or process of investigation, including the allegation that Superintendent Richards did not follow up with witnesses Mr Haw identified as relevant to his grievances, let alone discuss the findings and process carried out by Superintendent Richards. It is so brief that it is worthwhile setting out all of it:

The internal review finds that the initial investigation adhered to an established process and methodology, with the findings based on internal policies, procedures and letter of offer.

The original decision dated 23 January 2025 has been upheld.

[34] In Amaya v State of Queensland (Queensland Health ('Amaya'),[8] Hartigan IC, as her Honour then was, relevantly observed that Directive 11/20 (Individual Employee Grievances) outlines, at cl 9.2, the process for an internal review. It was also observed that cl 9.2(h)(ii) provides that upon completing an internal review the delegate must provide a written decision outlining the reasons for the decision. Hartigan IC observed that the decision was devoid of any written analysis of one of the appellant's key arguments, her religious beliefs, and how such religious beliefs were considered with respect to the exemption she had sought. Hartigan IC further observed that the result of that failure meant that the appellant, and the Commission on appeal, could not determine what regard was had to the appellant's religious beliefs in conducting the internal review. The decision was, on that basis, determined to be not fair and reasonable and returned to the respondent with orders that a different decision maker conduct a fresh internal review in accordance with the terms of Directive 11/20 within a fortnight.

[35] In conclusion on the s 562A issue, I am satisfied that there is an arguable case for an appeal but it is not on the basis of most of what Mr Haw seeks by way of remedy. Most of what Mr Haw seeks to have appealed or reviewed is beyond the scope of this appeal. However, Mr Haw's appeal is partly a complaint about AAC Seferovic's alleged failure to properly look into how Superintendent Richards dealt with Mr Haw's original grievance. That seems to me to be an arguable case based on my assessment of AAC Seferovic's decision. If AAC Seferovic did give consideration to Mr Haw's complaints about Superintendent Richards' investigation and decision, that is not evident on the decision. The vague references to unnamed process, methodology and internal policies and procedures being followed is not sufficient in my opinion.

[36] On that basis, there is practical utility in hearing the appeal but only on the one ground of appeal that Mr Haw actually raises in respect of the alleged failure by AAC Seferovic to properly look into how Superintendent Richards dealt with Mr Haw's grievances. None of the other arguments have any legal basis.

Was AAC Seferovic's review decision fair and reasonable?

[37] I have referred to the decision in Amaya. In particular, Hartigan IC's observations that a decision maker failing to even mention a particular grievance in their decision constituted grounds to find the decision did not comply with Directive 11/20. Hartigan IC found that that decision was not fair and reasonable because the appellant, and also the Commission, could not determine what regard was had by the decision-maker to the relevant grievance.

[38] The Fire Department submits that there were twelve other candidates who were identified as not being enrolled in an Officer Development Program in September when what I have referred to as the 2025 course was open to applications. Nine of those people are said to have been contacted by the Fire Department on 27 September 2024 and given an extension of two days to submit a late application. The reason why Mr Haw was not contacted is said to be that he was still enrolled in the 2024 course at the time and yet to re-sit the relevant module that he failed.

[39] The Fire Department also acknowledges that there was one employee who was part of Mr Haw's training course, who also failed, but who, unlike Mr Haw, was offered a place in what I have referred to as the 2025 course. The Fire Department submits, however, that that person had subsequently been removed from the earlier course due to failing it. At the relevant time, which is when the 2025 course opened for enrolments, that person was therefore not "attached" to a course, the Fire Department submits. Mr Haw was "attached" to a course because he was yet to re-sit the relevant module and still enrolled in the 2024 course. He did re-sit that module and was deemed a second time to be not yet competent. But that was a day after enrolments closed for the 2025 course.

[40] The Fire Department submits that Mr Haw not being invited to enrol in the 2025 course does not mean he was deemed ineligible to do so, or prevented from doing so. Mr Haw could, if he wanted to, have enrolled in that course, the Fire Department submits. The fact that he was still attached to another course was only the reason why staff did not approach him with an invitation to enrol in the 2025 course. So the submission here is that Mr Haw was not excluded from enrolling in that second course as he claims. It seems to me also that the submission is that it is acknowledged that Mr Haw was treated differently to others but there was a genuine reason for that, which was not sinister in any way.

[41] The problem with all of those submissions is that, as Hartigan IC observed in Amaya, that is not what the decision says. None of those words or considerations are in AAC Seferovic's decision. There is no discussion from which the reader can see that AAC Seferovic had regard to them in concluding his view about Superintendent Richards' investigation and decision. For example, Mr Haw's grievances about Superintendent Richards' investigation, including the allegation of a conflict of interest and the failure to follow up with witnesses, are not mentioned or discussed by AAC Seferovic. None of those allegations are the subject of reasoning as to why Superintendent Richards' investigation and decision were deemed to be fair and reasonable. I cannot therefore accept that AAC Seferovic had regard to any of those issues now raised for the first time in a response to this appeal.

[42] Following Hartigan IC's reasoning in Amaya, I conclude that if AAC Seferovic had regard to any of this material and the other issues Mr Haw complained about Superintendent Richards' decision, the Appellant, and the Commission, cannot see it. That is at odds with Directive 11/20. In my opinion, the decision is therefore not fair and reasonable.

[43] Accordingly, I order that the appeal is allowed in part, the decision is set aside, and the Fire Department is to appoint a person other than AAC Seferovic to carry out a review of Superintendent Richards' 23 January 2025 outcome advice by no later than 27 April 2026.

1. The appeal is allowed in part.
2. The decision is set aside.
3. The Respondent is to appoint a person other than AAC Seferovic to perform a review of Superintendent Richards' 23 January 2025 outcome advice to be conducted and delivered to the Appellant by 5:00 PM 27 April 2026.

[1] Industrial Relations Act 2016 (Qld) s 562B; Wilson v State of Queensland (Queensland Police Service) [2022] QIRC 329 [65] citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) 5.

[2] [2022] QIRC 16 ('Colebourne').

[5] Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97 [155].

[6] Schubert v State of Queensland (Queensland Health) [2024] QIRC 128 [8].

[7] [2023] ICQ 9 [20].

[8] [2022] QIRC 117, [31]-36].