Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2022
  4. Calabrese v State of Queensland (Queensland Fire and Emergency Services) - [2022] QIRC 421

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Calabrese v State of Queensland (Queensland Fire and Emergency Services)[2022] QIRC 421

Calabrese v State of Queensland (Queensland Fire and Emergency Services)[2022] QIRC 421

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Calabrese v State of Queensland (Queensland Fire and Emergency Services) [2022] QIRC 421

PARTIES: 

Calabrese, Francesco Paulo

(Appellant)

v

State of Queensland (Queensland Fire and Emergency Services)

(Respondent)

CASE NO.:

PSA/2022/212

PROCEEDING:

Public Service Appeal – Fair Treatment Decision

DELIVERED ON:

1 November 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – individual employee grievance regarding the inclusion of day work in the new day work register – where appellant dissatisfied with local action decision – where appellant lodged an internal review – where appellant dissatisfied with internal review decision – whether internal review decision was fair and reasonable – decision fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), s 194

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Reasons for Decision

Introduction

  1. [1]
    Mr Francesco Paulo Calabrese ('the Appellant') is employed by the State of Queensland (Queensland Fire and Emergency Services) ('QFES'; 'the Respondent') as a Station Officer at Taringa Fire and Rescue Station in the Brisbane Region ('BR') Central Zone.
  1. [2]
    The Appellant commenced employment with the Respondent as a recruit Firefighter on 2 October 1989 before being promoted to a Station Officer on 1 October 2009 and allocated to Taringa Station on 10 October 2010.
  1. [3]
    As a Station Officer, it is a condition of employment to rotate through functional day work positions ('day work') in their employment location to ensure that all positions within the establishment are occupied for the ongoing effective and efficient operational service delivery and to prevent disruption to functional areas and impacts on firefighter safety.
  1. [4]
    It seems that a list was used as a guide to assist with tracking the number of day work weeks performed by Station Officers and was previously kept and maintained by Acting Inspector Alan Jorgensen, a Manager of the Roster Office who retired in 2015. Subsequent to Mr Jorgensen's retirement, the list was not used until it was 'resurrected' at a later date following complaints regarding the allocation of day work. A new day work register for the recording and selecting of the next Station Officer for day work vacancies, the Local Knowledge Template ('LKT'), was established and published on 2 November 2021, with an updated policy being implemented on 16 December 2021.
  1. [5]
    In November 2021, the Appellant submitted an individual employee grievance in accordance with Directive 11/20 - Individual employee grievances ('the Directive') regarding a decision not to recognise day work weeks performed in the following periods the Appellant considers should be counted towards the Appellant's total on the new day work register:
  1. (a)
    1998 ('Period 1');
  1. (b)
    2008 ('Period 2'); and
  1. (c)
    2015 and 2017 ('Period 3').
  1. [6]
    On 23 December 2021, Mr Simon Ball, Acting Chief Superintendent, Director Regional Operations, BR, provided a response to the Appellant's grievance where the Appellant was advised inter alia that the work performed in 1998, 2015 and 2017 were deemed not valid for inclusion in the new day work register and that the day work performed in 2008 should be credited towards the new day work register.
  1. [7]
    On 4 January 2022, the Appellant submitted a request for an internal review of Mr Ball's decision and on 21 January 2022, Chief Superintendent Mark Stuart, Director Regional Operations, South Eastern Region, issued an internal review decision to the Appellant, which advised that the outcome of 23 December 2021 had been upheld ('the decision').
  1. [8]
    By appeal notice filed on 7 February 2022, the Appellant, pursuant to s 194(eb) of the Public Service Act 2008 (Qld), appealed against the decision.

Appeal principles

  1. [9]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [10]
    The purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the internal review decision of CS Stuart was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [11]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of appeal

  1. [12]
    The reasons for appeal as outlined by the Appellant in the appeal notice is as follow:

…

  1. [3]
    The day work I performed was done at the request of BR Management at the time. I did not apply to perform day work or submit an Expression of Interest (EOI).
  1. [4]
    After attaining the substantive rank of Station Officer (FPO2) in 2009, I enquired with Brisbane Region Rosters on multiple occasions regarding my amount of day work recorded. I had done this over the years and I used this as the basis of when I would apply for day work positions.
  1. [5]
    Throughout this process I have been given different reasons at different stages for exclusion of this day work performed between 1998 - 2000, these ranged from;
  • Fire fighters (FPO1) could not be compelled to perform daywork.
  • The day work did not comply with policy at the time.
  • There was no policy at the time to record day work.
  • The time was recorded on an ad-hoc basis.
  • The new Day Work Register-Report Logic excludes any day work performed prior to substantive Station Officer (FPO2) dating back to January 1998.
  1. [6]
    The Certified Agreement dated 11 December 1996, stated;
  • 3.1 Productivity Initiatives
  • "(1) The following initiatives will be implemented by FPO1 and FPO2 employees immediately on certification of this agreement:"
  • "(d) an acceptance by employees that they may be directed to perform 'day work', projects, special duties, etc.,"
  1. [7]
    Whilst there was no policy in place in 1998 to record day work, the 2005 policy SOP 5.4.6, established a need to develop a recording method for day work performed, and recognised any day work performed by staff dating back to January 1997.
  • 3.2 Selection of Station Officers for State and Brisbane Region Units:

(d); identifies that, "staff who have been in day work positions previously or have been involved in many transfers since January 1997, will attract a lesser priority."

  1. [8]
    The 2005 policy was reviewed and superseded in 2013, by BRRD3.4. This review continued to recognise day work performed and recorded under previous Agreements, Awards and Policy.
  1. [9]
    It is unreasonable that current Brisbane Region (BR) management is relying on the notion that that BR management at the time did not administer policy correctly and it was managed Ad-Hoc. None of the current BR management was in management roles at the time and were not privy to decisions made at that time.
  1. [10]
    The day work performed by me under Certified Agreements, subsequent Awards and EPA's as recognised and recorded by BR management and QF(e)S policy should be recognised for the length of my career within QFES.
  1. [11]
    The decision to exclude this day work on the basis there was no policy, then include day work performed back to 1998 for FPO2 rank is inconsistent and further supports my assertion of feeling bullied and harassed into a day work role.
  1. [12]
    I have provided sufficient evidence to each reason for exclusion made by BR management. On submission of the evidence supporting my claim, BR management has changed their reasons for exclusion, and has now provided a reason that is confusing, contradictory and fails to recognise the day work performed under the Certified Agreements, Awards, Policy and management decisions of the time.
  1. [13]
    The exclusion of this time from the Day Work Register is unfair and disadvantages me by moving my position closer to the top of the day work list. This reduces the time available to me to apply for a day work role that may be advertised and of interest to me. This movement has the effect that if a day work role were not filled through an EOI process then I would be transferred into this role if I were next on the list.

Relevant provisions of the Directive

  1. [13]
    Clause 9.2 of the Directive provides for stage 2 internal review of a local action decision:
  1. 9.2
    Stage 2–internal review
  1. (a)
    If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review.

…

  1. (d)
    An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances.
  1. (e)
    If the chief executive or delegate is satisfied that:
  1. (i)
    the reasons for seeking an internal review are insufficient
  1. (ii)
    the request for internal review is frivolous or vexatious, or
  1. (iii)
    the employee has unreasonably refused to participate in local action to resolve the individual employee grievance

the agency may decide to take no further action in relation to the request for internal review. The agency must give written reasons for its decision in accordance with clause 9.2(h). 

  1. (f)
    A decision about internal review of a decision made through local action must be made as soon as possible and within 14 days of receipt of a written request from an employee for internal review. The 14 day period commences from the date the agency receives the request for internal review, in accordance with clause 9.2(b). This applies unless:
  1. (i)
    the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement or
  1. (ii)
    where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance.

…

  1. (h)
    At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision to the employee. This decision must:
  1. (i)
    outline the action taken to review the decision made through local action
  1. (ii)
    outline the reasons for the decision, or the decision to take no further action
  1. (iii)
    outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and
  1. (iv)
    outline any avenues of external review that may be available to the employee, including any relevant timeframes.
  1. [14]
    Clause 9.3 of the Directive provides for stage 3 external review:
  1. 9.3
    Stage 3–external review
  1. (a)
    If the employee who made the original individual employee grievance is dissatisfied with a decision made following internal review, the employee may seek an external review. Depending on the issues raised in the grievance, the avenues for external review may include: 
  1. (i)
    a public service appeal against a decision under a directive, a decision of the CCE under section 88IA to give a direction about the handling of a work performance matter, or a fair treatment decision, as provided for under sections 194(1)(a), 194(1)(ba) or 194(1)(eb) of the PS Act

…

Submissions of the parties

  1. [15]
    The Commission issued a Directions Order calling for submissions from parties following receipt of the appeal notice. Both parties outlined extensive submissions in support of their position and will be considered further below.
  1. [16]
    The Appellant's relevant general submissions are that:
  1. (a)
    the Appellant performed day work in 1998 to 2000 in compliance with the industrial agreements in force at the time and as directed by BR management;
  1. (b)
    BR management has recognised the day work and has been recorded on the day work register;
  1. (c)
    historically, the Appellant has used information provided by the Roster Office to determine his timing to apply for day work;
  1. (d)
    the current BR management introduced a new LKT which has not been applied with fairness and equity and has failed to acknowledge the Appellant's work history in accordance with the QFES Procedure PR3076.1.0 – Manage Staffing of Operational Day Work Positions ('the Procedure');
  1. (e)
    the Respondent has not consulted with the Appellant regarding the changes in the Appellant's work history in accordance with cl 11.2 of the Queensland Fire and Emergency Service Employees Award – State 2016;
  1. (f)
    the Respondent has provided conflicting reasons for the exclusion of the Appellant's work history and continue to dismiss and not recognise his previous day work undertaken in 1998 to 2000; and
  1. (g)
    the decision to apply a policy retrospectively disadvantages the Appellant and is not fair and reasonable.
  1. [17]
    The Respondent's relevant general submissions are that:
  1. (a)
    BR has undertaken a fair and reasonable process by consulting all Station Officers in the region throughout the process of reviewing and updating the policy and implementing the new day work register;
  1. (b)
    the Appellant has not been treated any differently than all other Station Officers, including when he was advised on 3 November 2021 that he would soon be allocated to day work, which was done by a group email;
  1. (c)
    when the Appellant signed his appointment letter in 2009, he knew it was a requirement for Station Officers to rotate through day work positions;
  1. (d)
    clause 3.1(d) of the Queensland Fire Service Certified Agreement, 1996 clearly states that employees may be directed to perform duties including 'day work', projects and special duties and distinguishes 'day work' as different to projects;
  1. (e)
    the Appellant was paid higher duties for a development opportunity to work on a project between 1998 to 2000. There is no record of agreement with managers at that time that his higher duties as a Station Officer should be included as day work; and
  1. (f)
    the findings that the Appellant had an additional 55 weeks of day work while on higher duties included in his day work weeks total is a fair and reasonable outcome.

Consideration

  1. [18]
    Consideration of an appeal of this kind requires a review of the decision to determine if the decision was fair and reasonable in the circumstances.
  1. [19]
    The decision of CS Stuart was an internal review of an earlier decision by Mr Ball in this matter and was conducted in accordance with the grievance procedure. CS Stuart confirmed in the decision that he discussed with the Appellant his concerns prior to assessing all information submitted from QFES officers involved in the original grievance.
  1. [20]
    The background to this matter was the introduction of an updated LKT to replace a 2013 register of day work roles. Mr Ball outlines in his decision that the original 2013 register was established with the best of intentions, however there was little governance outside of the Roster Office and the use of the register was problematic due to work units 'cherry picking' employees for day work outside of the listings. Mr Ball notes that as the breadth of roles requiring officers on day work expanded, the process became more complex and contentious. As a consequence of a desire to place greater governance around the LKT, a review of the process occurred and a new LKT was developed.
  1. [21]
    The Appellant raised a grievance on the basis that the introduction of the new LKT has resulted in a reduction of weeks recorded on the BR day work register. The Appellant contends that this disadvantages him as he has been placed significantly higher up the list for him to perform day work. The grounds upon which the Appellant sought an internal review of the decision were that the removal of day work performed and previously recognised is unfair and has the effect of preventing the Appellant from submitting an expression of interest for a position at a time of his choice.
  1. [22]
    In the decision, CS Stuart outlined the following:

I have determined that the original complaint investigation was conducted in accordance with current policies and procedures. Interviews were conducted with the relevant people and procedural fairness provided.

Therefore, this review upholds the complaint outcomes and findings as reasonable.

In consideration of this and the other information gathered I have made these recommendations and provide further clarity:

  • The original decision to exclude the day work completed in 1998 is upheld. I can confirm as per our interview that you are correct in relation to QLD Fire Service Certified Agreement 1996, Firefighters could be directed to complete day work however it has been determined that there was no policy in place at the time to record the daywork.

I've sought clarification from A/Chief Superintendent Ball regarding his consideration "This period is not clearly identified within the daywork policy of the time". A/Chief Superintendent Ball has stated that this was a poor choice of words, [sic] no policy was in place at the time. 

SOP 5.4.6 states staff who have been in day work positions previously or have been involved in many transfers since January 1997 will attract a lesser priority. It appears that previous recording of day work was done by the BR Rosters on an ad-hoc basis with no formal policy or procedure in place.

The new BR LKT – Day Work Roster has undergone extensive consultation with agreement between stakeholders and supersedes previous policies and procedures in relation to day work. Read in conjunction with The Day Work Register – Report Logic, all day work prior to obtaining the substantive rank of Station Officer is excluded.

  • The original decision to include the day work completed in 2008 is upheld. Although technically this day work falls outside of the new LKT (prior to SO appointment), A/Chief Superintendent Ball has been fair and reasonable to include these hours which have been credited to your balance and will remain permanently. Under the LKT, any new SOs that are appointed under the new SO selection process would be in this same situation that they could be completing their study.
  • The original decision to exclude the day work completed in 2015 & 2017 is upheld. Both of these periods of day work were provided to you as part of a return-to-work plan for non-work related injuries. QFES is not obliged to provide suitable duties for non-work related injuries. It was to your advantage for the suitable duties to occur so that you did not need to utilise further sick leave or recreational leave whilst undergoing your rehabilitation to be fit for duty.
  • I have recommended that consideration for some flexibility regarding your approved LSL that was planned for your current roster allowing 12 days clear of duty be given.  
  1. [23]
    The grievance raised by the Appellant relate to the three separate periods as outlined above in [5].
  1. [24]
    Mr Ball made the following determination with respect to Period 1:

That the time period raised in 1998 should not be included in the new LKT count. This period is not clearly identified within the daywork policy of the time as a formal placement onto daywork. There is no question that the work carried out during this time was beneficial and of value to the Region, as confirmed by the testimonials and recollections provided in the body of evidence. There is no clear documentation confirming individual agreement for this period.

  1. [25]
    As I understand the Respondent's submissions, the Appellant's placement in the Period 1 higher duties role is not considered 'day work' for the purposes of the roster because the placement was for a project role and there was no daywork policy in place at the time. It is not in dispute that a Firefighter can be directed to perform 'day work' for the purposes of the roster.
  1. [26]
    During Period 1, the Appellant was placed in a higher duties role at the Station Officer classification while working on an IT project from 9 May 1998 to 3 August 1999 and 14 November 1999 to 6 April 2000.
  1. [27]
    Clause 3.1(1)(d) of the Queensland Fire Service Certified Agreement, 1996 provides the following:

3.1  PRODUCTIVITY INITIATIVES

  1. (1)
    The Following initiatives will be implemented by FPO1 and FPO2 employees immediately on certification of this Agreement:

…

  1. (d)
    an acceptance by employees that they may be directed to perform 'day work', projects, special duties, etc., subject to notice provision of the interim Award…
  1. [28]
    The reference to 'day work' in cl 3.1(1)(d) is separate to that of 'projects'. A reasonable inference is that the performing of day work and projects are not synonymous. An employee may be directed to perform day work that is not project or special duties work, and conversely that they may be directed to perform project or special duties work that is not considered to be day work.
  1. [29]
    The Appellant was paid higher duties while he worked on the projects, as he was not employed as a Station Officer at this time. The Appellant did not undertake any regular Station Officer duties while he was performing the project work on higher duties. This further suggests that the 'project' role is not the same as 'day work' which involves undertaking Station Officer duties.
  1. [30]
    The Respondent submits that there were no policies, procedures, or Certified Agreement clauses in place for day work in 1998 because the requirement for Station Officers to rotate through day work only commenced in 1998. The Respondent submits that policies and procedures governing day work requirements were subsequently implemented commencing in 2005 and were then reviewed and updated over the years. The versions of these documents did not include provisions that a firefighter's time acting on higher duties as Station Officer be included in the tally of day work undertaken at the Station Officer level.
  1. [31]
    The Respondent submitted an outline of the history of the transition of the previous day work list to the new day work register. Information of the previous day work list was provided by Station Officer Tony Shipp to Ms Mandy Belleville, a Principal Employee Relations Officer. Mr Shipp worked in the BR Roster Office in 2009 and 2011 when Mr Jorgensen was the Manager. Mr Shipp advised that Mr Jorgensen established a list to keep track of the number of day work weeks worked by Station Officers. Mr Jorgensen kept and maintained the list for himself to assist when meeting with senior employees to discuss Station Officer placements when day work vacancies became available. Mr Jorgensen's list was not accessible to any other officers and stopped being used after he retired.
  1. [32]
    Mr Shipp advised that there was no consistent process used to select which Station Officer was chosen to undertake various day work positions, with managers of vacant day work positions often asking the Roster Office who was coming up for day work and picking who they specifically wanted for their area rather than the next Station officer at the top of the list. This practice resulted in some Station Officers being selected to undertake daywork more regularly than others and a perception of unfairness about the process. In an attempt to provide transparency, Mr Jorgensen's old list was 'resurrected' and published on the QFES Intranet for Station Officers to access. Mr Shipp contends that there was no governance process in place to manage this list and as Station Officers rotated through the Roster Office, each one managed the list in their own way. The list was recorded in an 'Access Database' and there was no way to validate the data that was retained in it.
  1. [33]
    It appears that the creation and maintenance of the day work list was an ad hoc measure developed in an attempt to ensure fairness in the distribution of day work. There is no evidence before me of any policies, procedures or industrial provisions that provide for the creation or maintenance of such a list during Period 1. There is also no evidence of any lawful authority or delegation relied upon in order to maintain such a list. There seems to be periods in which the list was not in use at all and day work undertaken simply not recorded for this purpose. The ad hoc nature of the list suggests that an employee's place in the order was quite arbitrary and they may have been directed to do day work irrespective of whether they were at the top of the list. Whilst the Appellant may have sought reassurance from the fact that he was sufficiently low on the list to not be compelled to do day work in the near future, there is no evidence that such an arrangement was accurate, subject to any governance arrangements, or binding upon the employer. In these circumstances, it was reasonable to determine that the list could not be relied upon. Regardless of that outcome, it was open to CS Stuart to determine that the Appellant's time undertaking projects on higher duties was not considered 'day work' in accordance with cl 3.1(1)(d) of the Queensland Fire Service Certified Agreement, 1996.
  1. [34]
    Mr Ball made the following determination with respect to Period 2:

That the time period raised for 2008 should be credited towards the count in the new LKT and register. You commenced this voluntary daywork period while enrolled on the Officer Training Program and you were subsequently promoted to Station Officer during this period. The period following your promotion has already been credited to your count, and it is my opinion that it is fair and reasonable under these circumstances, and the entire period should be counted.

  1. [35]
    There is no dispute between the parties that the period in which the Appellant was on day work completing officer training should be credited towards his total count.
  1. [36]
    Mr Ball made the following determination with respect to Period 3:

That the time periods raised in 2015 and 2017 are not valid for inclusion in the new LKT. I am informed by the Workplace Health and Safety unit, that these periods were weeks/months spent on suitable duties offered to you following non-work-related injuries or illness. This was an optional arrangement reducing your need to access sick leave.

  1. [37]
    CS Stuart reviewed Mr Ball's determination regarding Period 3 and considered that during the relevant times in Period 3, the Appellant was provided with day work as part of a return-to-work plan for non-work related injuries. CS Stuart determined that QFES is not obliged to provide suitable duties for non-work related injuries, and that it was to the Appellant's advantage for suitable duties to be provided so he did not need to utilise further sick leave or recreational leave whilst undergoing rehabilitation to be fit for duty.
  1. [38]
    The requirement that Station Officers undertake day work involves the performance of the duties of a Station Officer during this time. Permitting the Appellant to undertake a return-to-work plan for non-work related injuries assisted the Appellant in returning to the workplace, however, did not appear to relieve the employer of the burden of rostering a Station Officer during this period. In those circumstances, it was not unreasonable for CS Stuart to determine that these periods could not be used to offset future requirements to conduct day work.
  1. [39]
    There is no question that as a Station Officer, the Appellant may be directed to perform day work as a condition of his employment. The operative industrial instruments in place throughout the periods in contention provide that staff may be moved to day work roles.[5]  The issue is how that direction is exercised in a manner that is fair and transparent to all employees. The Appellant refers to the Procedure which recommends that 'the region compiles a register of all staff identified as eligible to move to day work roles. This would include skills and qualifications as well as work history'. Whilst the Procedure refers more specifically to consideration of employee’s work history than that of the relevant industrial instruments, the manner in which work history is to be considered is not addressed. At its highest, the Procedure only recommends that the region compile a register of staff eligible for day work roles having regard to a combination of skills, qualifications and work history. This does not provide for a hierarchical list based strictly on previous placements on day work.
  1. [40]
    After considering all of the circumstances, the decision with respect to the Appellant's work in Period 1 was fair and reasonable on the basis that the work undertaken was project work rather than day work as a Station Officer. The decision with respect to Period 2 was open to the Respondent as the Appellant was completing day work as part of his Station Officer training. The decision with respect to Period 3 was fair and reasonable on the basis that the Appellant was performing day work as part of a return-to-work plan for non-work-related injuries and not as part of his duties as a Station Officer rostered on day work pursuant to the industrial requirements.
  1. [41]
    CS Stuart noted in the decision the Appellant's belief that he was being bullied into a day work role. Mr Ball, in the initial decision, rejected the Appellant's allegation of bullying and noted that the LKT was the result of lengthy collaboration with multiple stakeholders with broad application affecting every Station Officer across the Brisbane employment region. There is no evidence that the Appellant was individually targeted for unfair treatment in this process and, as such, this conclusion was open to the decision maker.
  1. [42]
    CS Stuart determined that Mr Ball had followed the QFES policy and procedure in managing the complaint and his actions were consistent with the QFES policy framework for complaint management. CS Stuart also noted that Mr Ball followed instructions from the Complaints Assessment Team. I am satisfied that the Appellant was afforded procedural fairness with respect to his complaint.
  1. [43]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[6] 

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[7]

  1. [44]
    Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances. The decision is, in my view, reasonable.
  1. [45]
    Based on the information before me, I am satisfied that the decision is fair and reasonable in the circumstances.

Order

  1. [46]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[4] IR Act s 562B(3).

[5] Clause 3.1(1)(d) of the Queensland Fire Service Certified Agreement, 1996 and cl 51 of the QFES Certified Agreement 2019 which provides that staff may be moved from shift work to day work roles.

[6] [2019] QSC 170.

[7] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Calabrese v State of Queensland (Queensland Fire and Emergency Services)

  • Shortened Case Name:

    Calabrese v State of Queensland (Queensland Fire and Emergency Services)

  • MNC:

    [2022] QIRC 421

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    01 Nov 2022

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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.