Bowe v State of Queensland (Queensland Police Service) [2026] QIRC 193

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bowe v State of Queensland (Queensland Police Service) [2026] QIRC 193 PARTIES: Bowe, Mark (Applicant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: TD/2025/75 PROCEEDING: Hearing DELIVERED ON: 9 June 2026 HEARING DATE: 28 January 2026 MEMBER: HEARD AT: O'Connor VP Brisbane ORDERS: 1. The medical retirement of the applicant under s 107 of the Public Sector Act 2022 (Qld) is a dismissal for the purposes of Chapter 8 Part 2 of the Industrial Relations Act 2016 (Qld). 2. The Commission has jurisdiction to hear and determine the matter. CATCHWORDS: INDUSTRIAL LAW – where an employee was directed to attend an Independent Medical Examination – where employee was medically unfit for work – where employee was medically retired without their consent - -- 1 of 10 -- 2 whether medical retirement under s 107(1)(b) of the Public Sector Act 2022 (Qld) is a dismissal for the purposes of Chapter 8 Part 2 of the Industrial Relations Act 2016 (Qld) – whether Parliament intended to exclude the appeal rights under Chapter 8, Part 2 of the Industrial Relations Act 2016 LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) ss 9, 121, 315, 316, 448, 449, 450 Public Sector Act 2022 (Qld) ss 91, 92, 93, 107, 109, 133 Acts Interpretation Act 1954 (Qld) s 14A Coco v The Queen (1994) 179 CLR 427 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Saville v Department of Corrective Services [2006] QIRC 126 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 APPEARANCES: Mr D. Hamwood of Together Queensland Industrial Union of Employees on behalf of the applicant Mr C. Jamieson on behalf of the respondent Reasons for Decision Background [1] Mark Bowe ('the applicant') commenced employment under the Public Sector Act 2022 (Qld) ('the PS Act') as a Protective Service Officer with the Queensland Police Service ('the respondent') on 23 August 2010. [2] On 7 June 2021 the applicant sustained a thoracolumbar injury at work while on duty ('the First Injury'). -- 2 of 10 -- 3 [3] In June 2024, Assistant Commissioner Pond determined that the applicant attend an Independent Medical Examination ('IME'). [4] On 8 July 2024, the applicant was issued with a Direction by Assistant Commissioner Pond to attend an IME on 13 November 2024 with Dr Ali Alavi, a consultant neurosurgeon. [5] The applicant suffered a further work-related injury in August 2024 ('the Second Injury'). [6] On 22 August 2024, Assistant Commissioner Pond made the determination to progress to an IME for the First Injury. [7] On 11 December 2024 the applicant attended on Dr Alavi. [8] On 8 January 2025 Dr Alavi rendered his report following the IME. He notes: …highly unlikely for him to be able to return to his fully operational duties for the foreseeable future, without risking further flare-up and exacerbation of his symptoms.1 [9] Between 20 January 2025 and 26 March 2025 the applicant participated in a nine-week pain management program at the Royal Brisbane Hospital. [10] From 24 February 2025 to 31 July 2025 the applicant reported to be medically unfit for work under a Work Cover Rehabilitation and Return to Work plan for the second injury and was absent from the workplace from 25 February 2025 until his medical retirement on 1 July 2025. [11] On 8 April 2025 the applicant received a letter from Senior Sargeant Gavin Pascoe, on behalf of Assistant Commissioner Pond, advising that the respondent was considering taking action under s 107 of the PS Act due to the IME Report and gave the applicant an opportunity to provide reasons why this should not occur prior to any decision being made by Assistant Commissioner Pond. [12] The applicant's response was due on 9 May 2025. The applicant requested and was granted an extension to 23 May 2025 to respond. [13] On 3 June 2025 Acting Assistant Commissioner Darrin Shadlow decided that the applicant should be medically retired. [14] On 1 July 2025 the applicant was medically retired pursuant to s 107(1)(b) of the PS Act. [15] On 21 July 2025, the applicant lodged an application under Chapter 8, Part 2 of the Industrial Relations Act 2016 (Qld) ('the IR Act') alleging unfair dismissal. The application was made within the statutory time limit. 1 Statement of Agreed Facts filed 3 December 2025, [18]. -- 3 of 10 -- 4 [16] The matter was the subject of a conference before the Queensland Industrial Relations Commission ('the Commission'). For present purposes it is sufficient to say that the issue in dispute was whether medical retirement under s 107(1)(b) of the PS Act was a dismissal for the purposes of Chapter 8 Part 2 of the IR Act. [17] There were significant differences between the parties as to the effect of s 107 of the PS Act. [18] On 2 October 2025, with the assistance of the parties, the following question was submitted for the consideration of the Commission: Is a medical retirement under section 107(1)(b) of the Public Sector Act 2022 a dismissal for the purposes of Chapter 8 Part 2 of the Industrial Relations Act 2016 such that the Commission has jurisdiction to perform the functions regarding dismissal under Section 447(n)(ii) of the Industrial Relations Act 2016. The case before the Commission [19] The applicant submits that his employment with the respondent was not excluded under s 315 of the IR Act from an application for reinstatement. [20] The respondent argues that a medical retirement under s 107 of the PS Act is a distinct statutory cessation of employment and does not fall within the meaning of a dismissal under the IR Act. It is further argued by the respondent that Chapter 8, Part 2 of the IR Act stipulates the jurisdiction of general dismissal, which it is contended focuses on employer-initiated cessation decisions where the IR Act's dismissal mechanism apply. [21] The respondent further argues that the proper characterisation of a statutory decision for jurisdictional purposes turns on the text, context and purpose of the relevant legislation, not the label used by the decision maker or the consequences of the decision. As such, the respondent submits that the task for the Commission is, therefore, to identify and give effect to the intention of Parliament as expressed in the statutory scheme.2 [22] The applicant submits that if Parliament had intended to exclude employees who had been dismissed under s 107 of the PS Act, s 315 of the IR Act would have expressly stated so. The applicant argues that by not having an exclusion for dismissal under s 107 of the PS Act, the inference should be drawn that Parliament intended s 316 of the IR Act to not exclude retirement under s 107 of the PS Act.3 [23] The respondent submits that where a party seeks a merit review of medical capacity outcomes, the appropriate avenue lies within the PS Act framework. The IR Act unfair dismissal process is not the pathway for assessing medical capacity determinations. [24] However, the applicant submits that the termination of the applicant's employment immediately ceases the ability for a former employee to utilise the appeals mechanism 2 Submissions of the Respondent filed 9 January 2026, [5] – [6]. 3 Submissions of the Applicant filed 19 December 2025, [5]. -- 4 of 10 -- 5 under Chapter 3, Part 10 of the PS Act, due to the requirement under s 133 of the PS Act for the appellant to be an employee as a public service officer or in the public sector.4 [25] The applicant relies upon s 315 of the IR Act and the absence of an express exclusion for s 107 of the PS Act. [26] The respondent submits that the proper analysis is to address the threshold question, namely, "is it a dismissal?" as opposed to "is it excluded?". Jurisdiction cannot be assumed and then excluded.5 [27] The respondent submits the question of whether an exclusion applies under s 315 of the IR Act only arises if the impugned decision is first properly characterised. [28] The applicant submitted that it is uncontroversial that the Commission has previously considered applications for reinstatement for public service employees who have been retired under the equivalent of s 107 of the PS Act. [29] To support his contention, the applicant relies on the decision of the Commission in Saville v Department of Corrective Services,6 where IC Blades wrote: The question is whether an ill-health retirement under the PSA is a dismissal under the Act. It seems to me to be clear that a forced ill-health retirement under the PSA falls within the meaning of the terms "dismiss" or "dismissal" under the Act. The retirement was not with the consent of the employee. An argument that an ill-health retirement did not constitute a dismissal was not raised by Education Queensland in the case of Glover v Education Queensland in an application claiming an unfair dismissal under s. 74. The retirement did not result from the operation of an Act of Parliament requiring retirement at a certain age as in LHMWU v Commonwealth of Australia. To be a dismissal, there must be a termination of employment at the initiative of the employer and without the genuine consent of the employee - Waller v Arundel Hills Country Club (Gold Coast) Pty Ltd per Fisher C. It matters not what it was called, whether dismissed, terminated, fired or sacked, the effect was the same. (citations excluded)7 [30] It is submitted that Parliament has empowered the Commission under the IR Act to hear, decide, and deal with dismissals that are not excluded under s 315 of the IR Act. The applicant submits that specific purpose includes dismissals under s 107 of the PS Act.8 [31] The applicant received a written notice dated 3 June 2025 from Acting Assistant Commissioner Darrin Shadlow of the Respondent ('the Retirement Letter').9 [32] The applicant submits that the Retirement Letter, which communicated the respondent's determination that the applicant should be retired from the public service effective 1 July 4 Applicant's Submissions filed 19 December 2025, [29]. 5 Respondent's Submissions filed 9 January 2026, [12]. 6 Saville v Department of Corrective Services [2006] QIRC 126 ('Saville'). 7 Ibid, 1. 8 Applicant's Submissions filed 19 December 2025, [32]. 9 Statement of Agreed facts filed 3 December 2025, [25]. -- 5 of 10 -- 6 2025, met the requirements under s 121(1)(a)(i) of the IR Act to provide the applicant with the required period of notice for dismissal.10 [33] In the alternative, the applicant submits that where the period of notice was not provided for under the Retirement Letter, that the respondent paid compensation to the applicant provided under s 121(1)(a)(ii) of the IR Act.11 [34] In correspondence of the Acting Assistant Commissioner Shadlow, the applicant was advised inter alia: You are advised that you may lodge an application for reinstatement under the Industrial Relations Act 2016 with the Queensland Industrial Relations Commission (QIRC) Industrial Registry […] please note that applications for unfair dismissals […] must be lodged with the QIRC within 21 days after the date of termination. The QIRC Industrial Registry will be able to provide further information about an application for reinstatement.12 [35] The Public Sector Commission has promulgated a guideline titled: Supporting employees affected by illness and disability: a practical guide to independent medical examinations for the Queensland public sector ('the Guideline').13 [36] The Guideline's statement of purpose provides: This Guideline supports the Independent medical examinations directive (the directive). In accordance with the directive, chief executives of public sector entities must consider this guideline when considering and directing an employee to submit to a medical examination, and when making any decision about the action to be taken following the medical examination under the Act and the directive.14 (emphasis added) [37] Clause 6 of the Guideline, headed Complaints, appeals and rights of review, includes the following paragraph: Where an employee has been ill health retired under section 107 of the Act, they may be able to lodge an application for re-instatement (unfair dismissal claim) with the Queensland Industrial Relations Commission (QIRC). Further information relating to unfair dismissal claims can be found on the QIRC website.15 [38] The respondent submits that administrative guidelines, policy documents and correspondence cannot expand or alter the jurisdiction conferred on the Commission by statute. It is asserted that jurisdiction must be sourced in legislation, not derived from guidance material or advisory statements. The duty of the Commission is to give the words of s 107 of the PS Act the meaning the legislature intended them to have.16 10 Applicant's Submissions filed 19 December 2025, [7]. 11 Ibid, [8]. 12 Ibid, [10]. 13 Supporting employees affected by illness and disability: a practical guide to independent medical examinations for the Queensland public sector, September 2024. 14 Ibid, 1.1. 15 Ibid, 6.1. 16 Submissions of the Respondent filed, 9 January 2026, [21] Citing Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, at [66]-[68]. -- 6 of 10 -- 7 [39] By terminating the employment of an employee at the initiative of the employer, s 107 of the PS Act provides for a lawful method of dismissal. The applicant submits that while such an action may be lawful, it may still also be harsh, unjust and unreasonable.17 Consideration [40] In short, the sole question before the Commission is whether a medical retirement under s 107(1)(b) of the PS Act is a dismissal for the purposes of Chapter 8, Part 2 of the IR Act. [41] Section 109 of the PS Act provides that the Public Sector Commissioner may make a directive providing for matters relevant to the application of Chapter 3, Part 8, Division 5 of the PS Act. The relevant directive is Independent medical examinations Directive 04/24 ('the Directive'). 6 [42] The respondent submits that the applicant's submission reduces the difference between "dismiss" and "retire" to a pedantic exercise in linguistics, which delegitimises Parliament's deliberate drafting.18 [43] Of course, words are important. In Project Blue Sky Inc v Australian Broadcasting Authority,19 it was observed: the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.20 [44] In SZTAL v Minister for Immigration and Border Protection,21 Kiefel CJ, Nettle and Gordon JJ addressed the approach to be taken in statutory construction: 14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. [45] It seems clear from the text and purpose of s 107 of the PS Act that the discretion of a chief executive, contained in s 107(1) of the PS Act, to terminate a public service officer's employment is enlivened when: the chief executive is reasonably satisfied that the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability; and it is not reasonably practicable to transfer or redeploy the employee. In those circumstances, the chief executive may "retire the employee from the public service". 17 Applicant's Submissions filed 19 December 2025, [27]. 18 Respondent's submissions filed, 9 January 2026, [27]. 19 (1998) 194 CLR 355, [78] (McHugh, Gummow, Kirby and Hayne JJ). 20 Ibid, [78]. 21 [2017] HCA 34; (2017) 262 CLR 362. -- 7 of 10 -- 8 [46] Pursuant to s 14A (1) of the Acts Interpretation Act 1954 (Qld), in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act (which includes its policy objective) is to be preferred to any other interpretation. [47] The Commission has, by virtue of s 450 of the IR Act, exclusive jurisdiction in relation to "industrial matters". [48] An "industrial matter" is defined by the IR Act as: 9 What is an industrial matter (1) An industrial matter is a matter that affects or relates to— (a) work done or to be done; or (b) the privileges, rights or functions of— (i) employers or employees; or (ii) persons who have been, or propose to be, or who may become, employers or employees; or (c) a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute. (2) However, a matter is not an industrial matter if it is the subject of a proceeding for— (a) an indictable offence; or (b) a public service appeal. (3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1. [49] The effect of s 107 of the PS Act resulting in the termination of a contract of employment is an "industrial matter". [50] The Commission's jurisdiction is granted by s 448 of the IR Act which relevantly provides: 448 Commission's jurisdiction (1) The commission may hear and decide the following matters— (a) … (b) all questions— (i) arising out of an industrial matter; or (ii) involving deciding the rights and duties of a person in relation to an industrial matter; or (iii) it considers expedient to hear and decide about an industrial matter … (e) all matters referred to the commission under this Act or another Act. … -- 8 of 10 -- 9 [51] Also relevant is s 449 of the IR Act. That is in terms: 449 Limitations on jurisdiction The commission does not have jurisdiction to hear and decide a matter about which another Act excludes— (a) the jurisdiction of the commission about the matter; or (b) the application of a decision under this Act about the matter. [52] The respondent submits that Parliament may leave non-dismissal cessations outside Chapter 8, Part 2 without listing them as they do not meet the definition of dismissal, not because they are included unless excluded.22 [53] What is argued by the respondent is that a dismissal under the IR Act refers to a cessation under general employment law, including ss 91 to 93 of the PS Act. Medical retirement, it is argued is a specific statutory outcome determined by the PS Act's medical capacity process. The purpose of s 107 of the PS Act demonstrates a "carveout" with medical retirement as a distinct type of cessation, with a distinct pathway that the employer must follow to reach this outcome. [54] To conclude that it was the legislative intent of the Parliament, to exclude the appeal rights of an employee medically retired under s 107 of the PS Act, it would need to be done with the requisite degree of certainty. It would need to appear "clearly" or "plainly" from the text and context of the provision that it was designed to operate in a manner which would exclude the appeal rights under Chapter 8, Part 2 of the IR Act. [55] As was observed in Coco v The Queen,23 where Mason CJ, Brennan, Gaudron and McHugh JJ said: The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.24 [56] For the purposes of s 317 of the IR Act, a dismissal happens when an employer ends an employee's contract of employment, either through misconduct, incapacity, operational requirements, or some other valid reason. [57] The words "retire the employee from the public service" do not imply a voluntary agreement by which the employee agrees to bring the employment to an end. The word 22 Respondent's Submissions filed, 9 January 2026 [15]. 23 (1994) 179 CLR 427. 24 Ibid 437. -- 9 of 10 -- 10 "retire" in s 107(1)(b)(i) of the PS Act is defined to mean, in the relevant sense "to leave office or employment" or "cause (a person) to retire from work".25 Essentially, "retire" means to bring to an end. [58] The word "retire" is used in s 107(1)(b)(i) in a transitive sense, to suggest some act by the employer to bring the employment to an end. The words compulsorily require a termination of the employee's employment. [59] Having regard to the context in which the word "retire" is used in s 107, it ought to be construed as meaning terminated by the action of the employer without the consent of the employee. It is, for all intents and purposes, a dismissal. Conclusion [60] The respondent has retired the applicant under s 107 of the PS Act. [61] The retirement of the applicant under s 107 of the PS Act by the respondent was not with the consent of the applicant. [62] The medical retirement of the applicant under s 107 is a dismissal for the purposes of Chapter 8 Part 2 of the IR Act. The exceptions to unfair dismissal under s 315 of the IR Act do not include retirement under s 107 of the PS Act. [63] For the reasons expressed above, I am of the view that the Commission has jurisdiction to hear and determine the matter. Order 1. The medical retirement of the applicant under s 107 of the Public Sector Act 2022 (Qld) is a dismissal for the purposes of Chapter 8 Part 2 of the Industrial Relations Act 2016 (Qld). 2. The Commission has jurisdiction to hear and determine the matter. 25 The Australian Oxford English Dictionary 2 nd ed. -- 10 of 10 --