Barber v State of Queensland (Queensland Health) [2026] QIRC 176

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Barber v State of Queensland (Queensland Health) [2026] QIRC 176 PARTIES: Barber, Greg (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2025/167 PROCEEDING: Public Sector Appeal – Fair Treatment Decision DELIVERED ON: 22 May 2026 MEMBER: HEARD AT: Pratt IC On the papers ORDERS: 1. The appeal is to be heard. 2. The Directions Order setting the schedule of submissions that was in place prior to the Respondent advising it had withdrawn the decision will recommence providing amended dates allowing for this intervening process. CATCHWORDS: INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a fair treatment decision – where the respondent advised that it had withdrawn the appealed decision in the interest of procedural fairness – consideration of whether there is any practical utility in hearing the appeal pursuant to s 562A of the Industrial Relations -- 1 of 9 -- 2 Act 2016 (Qld) – consideration of ss 4 and 24AA of the Acts Interpretation Act 1954 (Qld) – found that the authority of the chief executive or delegate to unilaterally withdraw, amend or substitute a decision is extinguished once the Commission's jurisdiction is enlivened – consideration of practical utility to hear the appeal – found that there is practical utility in hearing the appeal LEGISLATION: CASES: Acts Interpretation Act 1954 (Qld) s 4, s 24AA Industrial Relations Act 2016 (Qld) s 562A, s 562B Public Sector Act 2022 (Qld) s 134 Talbot v State of Queensland (Department of Education) [2023] QIRC 10 Venables v State of Queensland (Queensland Health) [2022] QIRC 137 Reasons for Decision [1] Mr Greg Barber is a Radiation Therapist at the Sunshine Coast University Hospital. He appeals a decision by his employer, the Sunshine Coast Hospital and Health Service ('Service'), which found he had engaged in conduct that exposed him to disciplinary action. What is the substantive appeal about? [2] The relevant alleged conduct was said to have been Mr Barber misusing his authority to move a friend's appointment to receive cancer treatment sooner than her priority classification required and accessing that patient's medical records improperly. [3] Mr Barber reviewed all the material presented to him and put on a comprehensive response to the allegations. Mr Barber did not expressly deny that he requested the patient's appointment be moved but argued the evidence supported a conclusion that his doing so was nothing more than is usually done for patients with logistical or other -- 2 of 9 -- 3 difficulties (which this patient had due to an upcoming trip away) and that this was discussed with those in charge and cleared. Mr Barber's response was essentially that the conduct was not inappropriate, albeit not denied per se. As to the access of the patient's records, Mr Barber admitted that he opened the relevant patient file on three occasions that day but argued this was likely to check appointment details and not to review otherwise confidential information. [4] Mr Barber's appeal challenges the findings within the decision on the basis that they were not reasonably open to the decision-maker. There is more to the appeal grounds of course but a brief summary includes arguments that some key witnesses were not interviewed, too much weight was given to witness statements, that the conduct was within delegated authority (which the decision-maker did not properly consider) and a technical argument underpinning the submission that it was not open to the decision- maker to conclude that Mr Barber took the time alleged in order to view 'all of the imaging' in the patient's file as alleged. The threshold issue [5] I have given only a brief summary of the appeal case and background because this decision will not be deciding the appeal. That is because this decision answers a threshold question that arose during the parties going through the process of filing their submissions on the appeal. After Mr Barber filed his submissions in support of the appeal, the Service issued a letter stating that it withdrew the decision. The letter relevantly said: In the interest of procedural fairness, and in accordance with the Public Sector Commission Discipline Directive 05/23, I have determined that the Show Cause 2 decision issued on 1 August 2025 regarding disciplinary findings will be withdrawn pending further review with a new delegate. As part of this process, you will be afforded an additional opportunity to respond. [6] The threshold question that arises is whether there is any useful purpose to conducting and deciding an appeal of a decision that has been withdrawn. I called the matter on for mention to discuss the practical utility of the proceedings where the decision being appealed was no longer being relied on by the Service. I directed the parties to address the Commission by way of written submissions on whether the Commission should refrain from hearing the appeal pursuant to s 562A(3)(b) of the Industrial Relations Act 2016 (Qld) ('IR Act'). [7] In summary, the Service argues that the matter should not be heard; that there is no practical utility in doing so because the decision is withdrawn. [8] Mr Barber argues there is utility in hearing the matter. He is concerned that withdrawing the decision unfairly elongates the disciplinary process, circumvents the appeal process already on foot, and gives the Service an unfair advantage. The key point to this last argument is said to be that the Service now has the benefit of all Mr Barber's arguments -- 3 of 9 -- 4 and submissions (in particular relating to evidence) only to regroup, as it were, and come at him again with another process utilising that information. What is the relevant test under s 562A(3)(b)? [9] Subsection 562A(3) of the IR Act says: (3) The commission may decide it will not hear a public service appeal against a decision if— (a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or (b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal— (i) is frivolous or vexatious; or (ii) is misconceived or lacks substance; or (iii) should not be heard for another compelling reason. [10] In this case, I consider that the relevant test or consideration is whether the appeal process can have any real practical utility or impact on Mr Barber's employment and, if not, whether that constitutes a compelling reason to not hear the appeal.1 Practical utility versus whether a decision can be withdrawn [11] Mr Barber argues that there is no provision in the Public Sector Act 2022 (Qld) ('PS Act'), or relevant directive, or the relevant HR policy, that permits an agency to unilaterally revoke a decision under appeal and substitute it with a new one. Mr Barber argues that the action of withdrawing the decision is 'procedurally improper, legally unsupported and prejudicial'. Mr Barber refers to the decision by Dwyer IC in Talbot2 in support of the argument that pursuant to s 562B of the IR Act, the Commission is compelled to conduct the appeal. In particular, the finding that the Commission 'must decide the appeal by reviewing the Decision appealed against'.3 Mr Barber also refers me to Dwyer IC's observations in Talbot that the authority of the Chief Executive to unilaterally withdraw, amend or substitute the decision under review is extinguished once the jurisdiction of the QIRC is enlivened.4 [12] Talbot was a case involving a deemed decision which was automatically imposed by virtue of the relevant provisions of the Public Sector Act 2022 (Qld) ('PS Act'). Dwyer IC also considered ss 4 and 24AA of the Acts Interpretation Act 1954 (Qld) ('Acts Interpretation Act'). Section 24AA of the Acts Interpretation Act relevantly allowed for a power to amend or repeal a decision authorised by an Act in the same way, and subject to the same conditions, as the power to make that decision. Dwyer IC also observed 1 Venables v State of Queensland (Queensland Health) [2022] QIRC 137 ('Venables'). 2 Talbot v State of Queensland (Department of Education) [2023] QIRC 10 ('Talbot'). 3 Ibid [77]. 4 Ibid [79]. -- 4 of 9 -- 5 that s 4 of the Acts Interpretation Act provided an important qualifier: that the application of any part, or even all of, the Acts Interpretation Act may be displaced by a contrary intention appearing in any Act. [13] In his initial submissions, Mr Barber did not set out this technical Acts Interpretation Act part of Talbot, although he clearly relied on the relevant findings. Mr Barber's initial submissions focused on aspects of unfairness and how the purported withdrawal of the decision was generally improper and circumvented the Commission's jurisdiction. He argued that the jurisdiction was clearly intended by the framers of the IR Act and the PS Act to deal with such matters brought property before it on appeal, which is, essentially, one of the key findings in Talbot. [14] The Service did specifically speak to this s 24AA Acts Interpretation Act issue in its submissions. It says that once the decision is revoked the appeal becomes inoperative because there is no longer a valid decision to challenge because s 24AA of the Acts Interpretation Act authorises it to amend or repeal the decision. The Service did not address whether any contrary intention appears in any Act pursuant to s 4 of the Acts Interpretation Act. [15] The point here is important because Dwyer IC's findings in Talbot went further than just a finding that some of the provisions within the PS Act (prescribing a timeframe for making subsequent decisions about Mr Talbot's conversion) constituted a contrary intention in an Act which was at odds with the notion of being able to withdraw a deemed conversion decision and substitute it for another.5 Dwyer IC also relevantly found that, as Mr Barber has highlighted in his reply submissions, a further contrary intention appeared within the IR Act. [16] Mr Barber, in reply to the submissions by the Service on the s 24AA of the Acts Interpretation Act point, argues that a contrary intention arises ''in a situation where a public sector appeal is made to the Commission.'' Mr Barber argues that by virtue of s 134 of the PS Act providing that an appeal is to be heard and decided under Ch 11 of the IR Act, s 562B of the IR Act relevantly provides a contrary intention in the form of the words 'must decide the appeal by reviewing the decision appealed against' (my emphasis). Mr Barber argues that the use of the word 'must' signals that it is mandatory for the Commission to decide the appeal. The key submission is that once an appeal is lodged in the Commission, the matter remains exclusively one for the Commission. That, Mr Barber argues, constitutes a contrary intention prescribed by an Act due to the Commission being compelled to decide the appeal by reviewing the decision appealed against. [17] Mr Barber points to the passage within Dwyer IC's decision in Talbot emphasising that the jurisdiction of the Commission to review the decision is enlivened from the time the appeal is filed. From that moment, the Commission becomes seized of the matter. 5 Ibid [72]. -- 5 of 9 -- 6 The significance of that is that the conferring of this jurisdiction upon the Commission by s 562B of the IR Act is plainly a contrary intention of the type described by s 4 of the Acts Interpretation Act. [18] The relevant finding Mr Barber relies on further states that the authority of the Chief Executive or their delegate to unilaterally withdraw, amend or substitute a decision is extinguished once the jurisdiction of the Commission is enlivened.6 Mr Barber also points to the observation that there are any number of options for decision-makers to legitimately give effect to their desire to resile from or amend a decision that is under review but that the contrary intent implicit in the language of s 562B of the IR Act means that purporting to unilaterally exercise the discretion found in s 24AA of the Acts Interpretation Act is not one of them.7 [19] Those submissions are compelling in my opinion. To that I would add that in Talbot, Dwyer IC also distinguished the point of whether a decision can lawfully be rescinded after an appeal of it is lodged with the Commission from whether the Commission considers there to be a compelling reason not to hear it. In Talbot, Dwyer IC relevantly said (emphasis in the original):8 In certain circumstances, a proposed amendment or revocation of the decision under review could well give rise to the presiding member of the QIRC exercising a discretion pursuant to 562A (3) of the IR Act if they considered that it remedied the grievance of the appellant in a manner that was sufficiently compelling or otherwise rendered the review futile. [20] In my opinion, this is particularly relevant here. As Dwyer IC observed, there is a difference between the question as to whether one can lawfully rescind a decision and the question of whether the appeal of a decision no longer relied upon is futile for some reason. Dwyer IC expressly observed that despite circumstances where a respondent is not legally able to revoke or rescind a decision that is the subject of an appeal, the situation may be sufficiently compelling such that the Commission considers that hearing the appeal is futile. Can the decision be withdrawn or rescinded in this case? [21] I respectfully agree with and adopt Dwyer IC's approach in Talbot. I therefore conclude that Mr Barber's submission - that the Service cannot unilaterally rescind, amend or replace the decision by relying on s 24AA of the Acts Interpretation Act - should be accepted. [22] So too the finding in Talbot that s 562B of the IR Act is a clear contrary intention within the IR Act such as that which is referred to in s 4 of the Acts Interpretation Act should be followed in my opinion. That is because, I accept and find, the authority of the Chief Executive or their delegate to unilaterally withdraw, amend or substitute a decision 6 Citing Talbot [79]. 7 Citing Talbot [82]. 8 Talbot [81]. -- 6 of 9 -- 7 under s 24AA of the Acts Interpretation Act is extinguished once the jurisdiction the Commission is enlivened in relation to an appeal of that decision.9 [23] There being no power to rescind the decision, the question as to whether there is any practical utility to hearing the appeal in the circumstances remains to be resolved. Is there practical utility to hearing the appeal? [24] Mr Barber says that there is practical utility in hearing the appeal. The Service argues that there is no point in circumstances where it seeks to start over, which is a possible outcome of the appeal: that I find the decision was flawed and send it back to the Service to redo. However, two other possible outcomes are that I find the decision was fair and reasonable and dismiss the appeal, or I find that it was not fair and reasonable and substitute it for a decision of the Commission. Mr Barber seeks the latter. [25] At first glance, there is some attraction to the submission that there is no real point in having an appeal of a decision that the respondent no longer intends to rely on and where at least one of the potential outcomes of an appeal is something that the respondent has stated it is prepared to do. [26] To that point, Mr Barber argues that he has already been subjected to a long and stressful process. It is now nearly two years since the day of the events in question. This time issue is as relevant to the accessing patient files allegation as it is to the allegation about moving the appointment in my opinion. Leaving aside the recollection of witnesses, Mr Barber's own recollection of why he opened the patient file has also faded. Indeed, it seems that he was not altogether clear in his recollection as to exactly why he did so back when he prepared his show cause response. [27] On my reading of the alleged incidents, they were not particularly memorable either. A conversation about moving someone's appointment, which happens often, will be challenging to accurately remember Mr Barber argues. He will be disadvantaged by a restart of the process if it means commencing a fresh investigation. That appears to be what the Service has proposed it will do, although that is not expressly made clear. A new delegated is to be appointed or has been, but it is not clear if that person will start from scratch as it were. All that is said in the letter is that ''…findings will be withdrawn pending further review with a new delegate.'' However, the Service says in its submissions that it proposes to conduct a fresh review 'and process', which is not explained. [28] Mr Barber's argument on this point is essentially that not hearing the appeal now puts him in an unfair situation where his outcome is to be decided partly upon the recollections of these unremarkable conversations and incidents now over two years 9 Ibid [79]. -- 7 of 9 -- 8 ago. Whereas, conversely, Mr Barber, argues, there is practical utility in hearing the appeal now because doing so avoids that unfair situation arising. [29] I accept Mr Barber's argument on this point but only in respect of the impact hearing the appeal would have on the employment, as discussed by Merrell DP in Venables. That is, that hearing the appeal will have a real and practical impact on the employment relationship because doing so avoids the unfairness Mr Barber argues will be caused by restarting the process as the Service has proposed. [30] But what if the appeal is heard and the decision results in precisely the outcome the Service has stated that it is ready and prepared to recommence now? That seems to be more than a mere possibility given the Service is already on record as having said there was something about the process, that in the Service's opinion, was lacking in procedural fairness to such an extent that it thought it appropriate to start over. This is very much what the Service now presents as the primary case for not hearing the appeal. [31] The difficulty I have with that submission is that it does not address the other two possible outcomes of hearing the appeal. The appeal might be dismissed and the decision confirmed. That is even though the Service has sought to withdraw the decision citing some aspect of procedural fairness. That may not necessarily be fatal, though. It is not what the respondent thinks that matters. Whether the decision (including the process leading to it) was 'fair and reasonable' in the circumstances is a matter for the Commission to decide. [32] The other possible outcome of an appeal being heard now is that the appeal is allowed and a finding is made that the decision was not fair and reasonable. The Commission could, in those circumstances, decide to substitute the decision for another decision. Alternatively, the Commission may instead return the matter to the decision maker with any directions considered appropriate. Mr Barber advocates for the outcome involving a substituted decision. He argues that a substituted decision should be one finding that there was no basis upon which to find that his conduct fell below the relevant standard. [33] I accept there are at least two possible outcomes of the appeal being heard. I find that each possibility does have potential practical utility to the employment and the parties. [34] I do not accept Mr Barber's submission that there is a risk that should the Commission allow the Service to withdraw the decision, public sector employers would start to withdraw decisions under appeal so that they could issue fresh decisions later to avoid external scrutiny. That is a purely speculative and 'floodgates' type argument in my opinion. I see no evidence of any such risk, particularly in light of the finding that there is no power to withdraw the decision once it is properly before the Commission on appeal. [35] Mr Barber's submission that an appeal right is an entitlement that should not be lightly dismissed by the Commission is correct. However, the question is whether there is any -- 8 of 9 -- 9 point to continuing on with the appeal process in the circumstances. Having a right to run an appeal may exist in any number of cases where it may still be found that there is no practical reason for doing so. That is the purpose of the provision at s 562A (3) of the IR Act. It is specifically designed to address circumstances where an appellant has a right to bring an appeal but the Commission deems that it should not hear the appeal because it is misconceived or lacking in substance or for some other compelling reason. [36] Mr Barber also makes the submission that allowing a public sector employer to unilaterally withdraw a decision under appeal invites uncertainty into the appeals process. For the reasons stated above, that argument must be rejected. It relies upon a finding that an employer can unilaterally withdraw decisions that are the subject of appeal proceedings before the Commission. I have already accepted that that is not possible. The real question in this case right now is whether there is any point to hearing the appeal in the circumstances where the Service no longer wishes to rely on the decision being appealed. [37] In my view, the answer to the question of whether there is any practical utility in hearing this appeal has to be 'yes'. That is even though one possible outcome may be that I find the decision was not fair and reasonable and send it back to the Service to do again, which is actually what the Service is proposing to do now. The reason why there is practical utility in hearing the appeal is because there is still a prospect that the decision, if found to not be fair and reasonable for some reason, may be substituted for a decision by the Commission. There is still potential for the appeal to be dismissed too. That cannot be ruled out at this early stage, despite whatever the concerns are that the Service has regarding what it thinks is a less than ideal process leading to the decision. [38] There being potential for the appeal to result in an outcome that has some practical utility, I conclude that there is no compelling reason to refrain from hearing it. [39] I order accordingly: Orders 1. The appeal is to be heard. 2. The Directions Order setting the schedule of submissions that was in place prior to the Respondent advising it had withdrawn the decision will recommence providing amended dates allowing for this intervening process. -- 9 of 9 --