Davey v State of Queensland (Queensland Fire and Emergency Services) [2025] QIRC 168

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Davey v State of Queensland (Queensland Fire and Emergency Services) [2025] QIRC 168 PARTIES: Davey, Garry Ross (Appellant) v State of Queensland (Queensland Fire and Emergency Services) (Respondent) CASE NO: PSA/2023/36 PROCEEDING: Public Sector Appeal – Fair Treatment Decision DELIVERED ON: 1 July 2025 MEMBER: McLennan IC HEARD AT: On the papers ORDERS: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): 1. Chief Superintendent Reading's decision dated 27 June 2024, is set aside and another decision is substituted: (a) Chief Superintendent Reading's decision was not fair and reasonable, with respect to Issue 2. It was not fair and reasonable for Ms Rutherford to have included reference to complaints 1-499 and 1-500, that were subject to a review by the Commission. (b) Chief Superintendent Reading's decision with respect to Issues 1, 3, 4, -- 1 of 48 -- 2 5, 6, 7, 8, 9 and 10 was fair and reasonable. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant is employed as a station officer – where the appellant submitted an individual employee grievance against Officer Shuker – where an internal review of the outcome of the individual employee grievance was conducted – where the appellant submitted an appeal of the internal review – where a hearing and conference were held and the parties agreed that a fresh internal review would be conducted by the respondent within four months – where the appellant was dissatisfied with the outcome of the fresh internal review decision as it did not address the appellant's complaints against Officer Shuker, it only addressed the complaints made by Officer Shuker against the appellant – where the appellant appealed the fresh internal review decision – where a second hearing and conference were held – where a fresh review of the appellant's complaints against Officer Shuker were agreed to be done by the respondent – where the appellant appeals the outcome of that fresh internal review – whether the third internal review decision was fair and reasonable LEGISLATION AND INSTRUMENTS: Industrial Relations Act 2016 (Qld) s 272, s 425, s 449, s 562B, s 564 Directive 11/20: Individual employee grievances cl 8, cl 9 CASES: State of Queensland (Queensland Health) v Hume [2024] ICQ 3 -- 2 of 48 -- 3 Reasons for Decision Background [1] There is a long history of conflict between Officer Garry Davey and Officer Ian Shuker. What started as workplace tensions, soon escalated to disputation, then spilled over into local union activities. [2] The pair made multiple accusations of inappropriate behaviour against the other, as various Individual Employee Grievances (IEGs) were filed. [3] This public sector appeal is rather unusual, in terms of both timeframes and complexity. [4] The brief account below sets out the various steps taken in resolution of the matter, culminating in the third internal review decision that is the subject of this appeal. Local level decision [5] The unenviable task of sorting out those complaints was first remitted to Ms Ronda Rutherford. Her 12 August 2022 decision (the 'outcome advice') considered both: • complaints made by Officer Davey about Officer Ian Shuker (CMS 1-1520, alleging inappropriate workplace behaviour); and • complaints made by Officers Shuker and Blanchfield about Officer Davey (CMS 1-1639, alleging inappropriate behaviour at a UFUQ meeting). [6] Ms Rutherford assessed the following complaints made by Officer Davey about Officer Shuker (CMS 1-1520): Allegation that Ian Shuker has displayed inappropriate workplace behaviours towards Garry Davey as follows – (1) Unjustified criticism or complaints On 19/02/2019 Ian Shuker sent an email to Garry Davey's work colleagues, immediate supervisor and Chief Supt, but not to SO Davey, alleging failure of duty SO Shuker raised a workplace issue (not engaging FESSN as per TacD 19.01.00 – FESSN Critical Incident Response and Management Activation) in a reasonable and appropriate manner. The workplace issue was placing undue stress on FFs who attended damaging incidents and highlighted the non application of a standard order / policy to alert FESSN in those instances. SO Shuker says he first raised it with the OIC (SO Davey) who refused to engage FESSN as per policy. SO Shuker says that he again raised it with SO Davey who refused to contact FESSN and said words to the effect that "the Firefighters would be fine." SO Shuker states that "I knew mandatory obligations and cared about the welfare of the guys. That's why I contacted FESSN." … -- 3 of 48 -- 4 Insp Stockwell said he would speak with SO Davey about it. … A second incident occurred approximately 6 months later and SO Shuker states that, again, FESSN was not contacted. In his email dated 19/02/2019 SO Shuker again raised the issue with A/Inspector Brad Stockwell and asked whether he had spoken with the OIC (SO Davey) and if the OIC knew the procedure and whether it was being followed. Insp Stockwell had not talked to SO Davey about it and admitted that in his return email. … Brad Stockwell should not have forwarded that email to SO Davey especially after admitting he had not as yet had the opportunity to speak to the OIC involved at this stage. Brad Stockwell should have spoken directly to SO Davey about the concerns raised and managed the situation without heightening it. … This matter was dealt with by Chief Superintendent Steve Smith who discussed the situation with SO Davey and SO Shuker… … QFES encourages staff to raise issues especially those concerning mental health and welfare of our people. Those who do raise issues should be supported. SO Shuker felt particularly unsupported in this matter. SO Shuker asserts that his email clearly stated the intent was a) Crew welfare b) Repeated Firecare / PSO nonattendance c) Correcting practices moving forward d) Alerting management that support when addressing issues was needed SO Shuker then alleges that none of that occurred and the crew were never contacted. This should have been followed up with FESSN at the time. … Outcome The criticism made by SO Shuker was justified. SO Shuker followed correct protocols in raising the issues. (2) Malicious criticism A) SO Davey states that SO Shuker has gone in and checked his completed fire reports and reported deemed failings of his actions to senior officers SO Shuker stated that he believes SO Davey is referring to checking SO Davey's fire reports after the incidents when FESSN should have been engaged. SO Shuker said he did so in order to get a fire report number. … B) SO Davey also refers to an incident that happened in 2015 in regard to a Fire Fighter Undertaking Bronto Appliance Assessment This incident is included in complaint number 1-1499 which is currently subject to an Appeals process in the QIRC. SO Shuker believed that SO Davey was not undertaking the assessment correctly and SO Davey disagreed. -- 4 of 48 -- 5 … C) SO Davey sent out an email referring to the Station Officer Day Work Roster. SO Shuker submitted a complaint in regard to this email. The complaint details and outcomes have been addressed in CMS 1-1499. In addition, SO Blanchfield also submitted a complaint in regard to SO Davey's email (CMS 1-1500). … D) SO Davey states that since becoming Union President for Rockhampton SO Shuker has derided the process in his becoming elected and questioned and criticised every aspect of actions SO Davey has taken, in mass distributed emails … The status of this situation is with the UFUQ. … (3) Spreading misinformation or malicious rumours On Thursday 2nd of December 2021 Kevin Cook spoke to SO Davey in regard to a phone call that had been made to him on Saturday 27th November providing false information that SO Davey's girlfriend worked at the catering company 'Yogolicious', used by QFES at a training course which SO Davey was the training officer, implying there was a conflict of interest. SO Davey says this is completely baseless… … The raising of an issue of a possible conflict of interest in procurement of services is every staff member's responsibility. The general talk around the station was that SO Davey had a private connection with the owner or a worker within 'Yogolicious'…then used to cater a number of training courses that SO Davey had arranged. … …Raising the concern to have it looked into was correct procedure and in line with the Code of Conduct. … …I do not see this as constituting bullying. SO Davey was exonerated from any wrong doing. Outcome It's every employee's responsibility to raise issues such as these. (4) Deliberately excluding SO Davey from workplace activities A) Failed to consult with SO Davey regarding roster planning and did not include him in the email when the roster was sent out … SO Davey states that for a considerable period, rostering of staff at the 2 Rockhampton Stations was done without including him…Information was passed from SO Shuker directly to the firefighters and SO Davey would find out from the firefighters themselves. SO Davey said that…he was deliberately excluded from information. SO Shuker denies deliberately excluding SO Davey from roster planning… … The process is more definitive now. SO Shuker said that if SO Davey had a problem with not being communicated to then he should have raised it at the time. He said he was the newer and more junior SO and was acting under the guidance of SO Peter Guley. If there was a problem he should have raised it with SO Guley at the time. -- 5 of 48 -- 6 SO Shuker did recall a 'transfer situation' a few years ago that DO Davey might be referring to. SO Shuker said that a few years ago a firefighter, Brad Boyce was moving from St 34 to St 35 and SO Davey had called St 35 upon learning of the move and was unhappy about the move. Again, SO Shuker said that he was one of 2 SOs at the time and he was not solely in charge of rostering and that he was by far the junior SO… … Outcome I did not find evidence that SO Shuker was deliberately excluding SO Davey from workplace activities. SO Davey should have raised his issues with lack of communication over rostering with SO Shuker at the time… B) 9/07/2021 Excluded SO Davey from being involved in speaking at Blair Grice's funeral, specifically from saying a Eulogy … SO Davey said that SO Shuker attached himself to the family and took over organising things for the funeral. He said he believes SO Shuker took over speaking at the funeral so SO Davey couldn't do it… SO Shuker states that he was friends with Blair Grice before joining the fire service and he knew the family. SO Shuker states that Assistant Commissioner Darryl King asked him to manage QFES' part in the funeral arrangements on QFES' behalf. SO Shuker said that he asked the family if that was ok. SO Shuker stated that Mark, Blair's brother and Blair's mum were happy that SO Shuker would be looking after things as he knew all the family members. SO Shuker said that…the family had requested that only 1 or 2 QFES people were to speak – one to read the Fireman's Prayer and 1 to read Blair's history / anecdotes. … SO Shuker's and SO Davey's email exchange of 9 July 2021 confirms that SO Davey said that he would be happy to do history/anecdotes and that SO Davey did not want to do the Fireman's Prayer… … SO Shuker has stated that he was not trying to exclude him but was trying to make the arrangements as best he could under difficult circumstances. SO Shuker also said that he offered that Garry do the last turn out but that Garry declined. Outcome …SO Shuker has provided an explanation of how the arrangements for Blair's funeral came about and has provided email communications to support his conversations with the family. (5) Allegation that on the 14/12/2021 at an evening Rockhampton UFU meeting, Ian Shuker spoke about the IEG lodged against Garry Davey in front of attendees This was SO Davey's first meeting as President… SO Shuker wanted to raise the Day Work roster as a current workplace issue and insisted on doing so. That issue was connected to a Day Work roster email that SO Davey had put out and that was subject to a grievance put in by SO Shuker and SO Blanchfield (CMS 1-1499 and 1-1500). … SO Shuker discussed raising the issue with the Senior Advisor Workplace Standards…Advice given by Ms Lill at that time was that it was okay for SO Shuker to raise the substance of the issue but not the fact that there is a grievance attached to the issue. … A reasonable person could see how SO Davey would think that SO Shuker had raised the grievance and breached confidentiality. Technically, however, SO Shuker did not raise the -- 6 of 48 -- 7 grievance and breach confidentiality. SO Shuker raised the workplace issue and then SO Davey pointed out that SO Shuker could not talk about that as it was subject to a grievance, in effect raising the issue of there being a grievance first. … Outcome Both SO Shuker and SO Davey understand the requirements of keeping grievances confidential… It could be said that both parties spoke about the IEG at the union meeting, and that the discussions that followed were tense. … In addition, SO Davey has claimed that Bob Efimenko told him…that SO Shuker had said to Bob that he had 'enough on him now' or something similar…to get him sacked. SO Shuker denies saying this… Bob Efimenko had difficulty in remembering what was said to him and when. He said he did seem to recall SO Shuker saying something like that to him. He couldn't recall the exact words or when it was… I asked Bob to contact me if he remembered anything further. [7] Ms Rutherford also assessed two complaints made about Officer Davey by Officers Shuker and Blanchfield (CMS 1-1639). That related to Officer Davey's alleged behaviour at a union meeting. (Those matters are not subject of this Decision). [8] With respect to all complaints raised, Ms Rutherford found in favour of Officer Shuker. [9] Ms Rutherford decided that Officer Davey should be: • counselled about his conduct at the union meeting (which she categorised as "using inappropriate language and being aggressive");1 • complete training; • engage in coaching; • undertake mediation.2 [10] That determination inflamed matters. First Internal review decision [11] Officer Davey sought an internal review of Ms Rutherford's outcome advice. That was conducted by A/Chief Superintendent Brad Moore.3 1 Rutherford decision dated 12 August 2022, 11. 2 Ibid 12. 3 A/Chief Superintendent Brad Moore's decision was issued on 3 February 2023. -- 7 of 48 -- 8 [12] A/Chief Superintendent Moore stated that the process he undertook first identified "the key issues across the numerous issues [Officer Davey] identified in [his] request for internal review form."4 [13] Some of Officer Davey's complaints pertained to alleged behaviour at a union meeting. Those matters (CMS 1-1639) are not subject of this Decision, so I have not included them in the recount of the key issues below. [14] A/Chief Superintendent Moore considered the remaining "key issues" relevant to Officer Davey's complaints about Officer Shuker (CMS 1-1520):5 Key issue 1: That the complaint process undertaken by Ms Rutherford failed to address all of the issues raised in GD's complaint, thoroughly.6 [15] With respect to "Key issue 1", A/Chief Superintendent Moore noted that Officer Davey: …did add matters / examples of [his] overall concerns about SO Shuker's behaviour towards [him], that were not part of [his] original complaint. It is reasonable that a complaint manager focusses on the issues that are subject to a complaint, rather than continue to add further issues to interrogate during the process…I found that in the circumstances, the inquiries undertaken by Ms Rutherford were sufficient to cover all of the issues raised in [his] complaints submitted on 10 December and 15 December 2021 (CMS 1-520). The action taken by the complaint manager was fair and reasonable… Key issue 2: That the complaint manager did not make a finding that [Officer Davey's] concerns constituted bullying or habitual behaviour.7 [16] With respect to "Key issue 2", A/Chief Superintendent Moore noted that "…it is not an unreasonable interpretation" to first look at each event individually. He said: If none of the examples provided were found to be capable of substantiating bullying, it follows that an overall finding of bullying could not be made in relation to [Officer Davey's] complaint…Ms Rutherford had addressed the alleged pattern of bullying…The action taken…was fair and reasonable… Key issue 3: That there were inadequate inquiries undertaken in relation to the complaint process, specifically: • The complaint manager did not contact your nominated witnesses in relation to Mr Grice's funeral arrangements…and the rostering issue. • … • The complaint manager did not consult you prior to making her findings in relation to the complaints.8 [17] With respect to "Key issue 3", A/Chief Superintendent Moore noted that: …Ms Rutherford's judgement regarding witnesses for the Grice's funeral arrangements was reasonable and that further inquiries would be inappropriate in the circumstances and not 4 Ibid 1. 5 Ibid 1-2. 6 Ibid 1. 7 Ibid. 8 Ibid 2. -- 8 of 48 -- 9 proportionate to the concern raised. Further, sighting the relevant evidence provided by SO Shuker was more than sufficient for Ms Rutherford to place more weight on his version than yours… With regards to the rostering issue…given the process has since been better defined, the age of the example involving FF Boyes, and the nature of a difference of opinion between peers, does not give rise to a need for further examination… Further…it was reasonable that Ms Rutherford did not consult you about her proposed findings before they were provided/decided. This is not a practice undertaken in complaint handling… Overall…the action taken…was fair and reasonable… Key issue 4: That the complaint manager showed bias and was not impartial during the complaint process, specifically: • … • The complaint manager accepted SO Shuker's version over [Officer Davey's], where [he] identified that [he] disagreed with SO Shuker's version.9 [18] With respect to "Key issue 4", A/Chief Superintendent Moore noted that it would not have been "practical or efficient" to "allow each party to rebut the other's version for every issue during the complaint process"; however "the language used to convey [her] observations and findings could have been more neutral in tone and sensitive to the impact on you, and I will provide this feedback to Ms Rutherford". Key issue 5: That the complaint manager discussed closed complaints (1-499 and 1-500), which were unrelated to the current matters.10 [19] With respect to "Key issue 5", A/Chief Superintendent Moore determined that it was not fair and reasonable for Ms Rutherford to have included reference to complaints 1-499 and 1-500, that were subject to a QIRC review. [20] A/Chief Superintendent Brad Moore decided that:11 • Ms Rutherford's determination of the first four issues raised was fair and reasonable. • Ms Rutherford's inclusion of the fifth issue was not fair and reasonable. • The "inclusion of commentary" as to Ms Rutherford's own perceptions of Officer Shuker's intentions "was not fair and reasonable." [21] Officer Davey was dissatisfied with the outcome of the internal review. First Appeal [22] On 9 March 2023, Officer Davey filed a public sector appeal against the internal review decision. 9 Ibid. 10 Ibid. 11 Ibid. -- 9 of 48 -- 10 [23] I directed that Officer Davey and QFES file submissions, with respect to the public sector appeal. [24] Officer Davey filed submissions on 20 March 2023. [25] QFES filed submissions on 27 March 2023. [26] Officer Davey filed reply submissions on 31 March 2023. [27] Officer Davey also applied for leave to make oral submissions on that day. That was granted. First Hearing, Conference and Recommendation [28] Proceedings were held on 30 May 2023 to hear Officer Davey. Appearing for QFES were Acting Assistant Commissioner Clint Tunnie, Central Region and Ms Claire Dwyer, Principal Employee Relations Officer. [29] The parties agreed to participate in a conference, following that proceeding. [30] At the conclusion of the conference, I recommended that QFES arrange for Officer Davey and Officer Shuker to "participate in a facilitated mediation, focussed on practical outcomes", with such mediation to be conducted by a suitably credentialed, external person. [31] QFES reported that the "one-on-one officer intakes that precede a mediation determine whether or not the mediator feels they have any prospect of success. And there was no prospect of success indicated from those intake meetings."12 Next Conference and Recommendation [32] The parties were back before me for a further conference on 27 June 2023. [33] I then issued another recommendation, by consent, on 27 June 2023 that: • the "formal counselling" on Officer Davey's record be expunged;13 • a new decision-maker be appointed by QFES to conduct a "fresh review, to be completed within 4 months"; • if Officer Davey wished to appeal the outcome of the fresh review, the matter would be allocated to me to decide; and 12 Hearing transcript, 6 February 2024, 2-28, lines 46-47; 2-29, lines 1-2. 13 As had been decided by Ms Rutherford because of Officer Davey's alleged conduct at a union meeting. -- 10 of 48 -- 11 • Chief Superintendent Tunnie will reconsider Officer Davey's award eligibility matter. Second Internal review decision [34] On 6 October 2023, Acting Chief Superintendent Simon Evans14 wrote to Officer Davey stating: • the "formal counselling" had been removed from Officer Davey's record, pursuant to my recommendation; • Chief Superintendent Tunnie was reconsidering Officer Davey's award eligibility matter;15 • "an internal review officer and decision maker from outside Central Region was appointed"; • the outcome of that (second) internal review was that the complaints made by Officers Shuker and Blanchfield about Officer Davey's behaviour at a UFUQ meeting (CMS 1-1639) were "substantiated"; and • it was decided that Officer Davey would be "informally counselled in relation to these matters." Second Appeal [35] Officer Davey advised he would appeal that (second) internal review decision,16 so I directed the parties to file submissions with respect to that decision. [36] On 31 October 2023, Officer Davey submitted that the 6 October 2023 decision was not fair and reasonable for a number of reasons, including that the fresh review undertaken by QFES had only considered the complaints made against him by Officers Shuker and Blanchfield (CMS 1-1639). The decision had not also considered the complaints made by Officer Davey against Officer Shuker (CMS 1-1520). Officer Davey correctly observed that QFES had not complied with my recommendation because "CMS 1-1520 is not mentioned at any time." [37] QFES submissions were filed on 21 November 2023. 14 Director, Relations and Standards Branch. 15 On 23 October 2023, QFES emailed the Industrial Registry to advise that: "…Acting Chief Superintendent Tunnie made contact with Mr Davey on 18 October 2023, requesting information to assist him in re-considering Mr Davey's eligibility for the medal. On 19 October 2023, Mr Davey advised Mr Tunnie that he does not want the medal. Therefore no further action will be taken by QFES in relation to the medal." 16 Email from Officer Davey dated 9 October 2023. -- 11 of 48 -- 12 [38] Officer Davey again applied for leave to make oral submissions on 28 November 2023. That was granted. Second Hearing, Conference and Order [39] Proceedings were held on 6 February 2024 to hear Officer Davey. Appearing for QFES were Ms Fiona Bridges, A/Executive Manager, Industrial Relations and Ms Jessica Cameron, A/Principal Employee Relations Officer. [40] The parties agreed to participate in a conference, following that proceeding. [41] At the conclusion of the conference, I ordered by consent17 that: 1. The QFES decision dated 6 October 2023 (the decision) was not fair and reasonable because: a) The decision addressed only one part of Ms Rutherford's 12 August 2022 decision (CMS 1 – 1639), and did not address the remaining matters CMS 1 – 1520; b) The decision contained no materials / evidence upon which the decision was based; c) The decision provided insufficient reasons for determining the two allegations to be 'substantiated'; d) The matters related to alleged conduct at a local UFUQ branch union meeting. As such, it was outside the scope of QFES. e) Whilst the Commission recognises that the decision did not impose any 'disciplinary action', pursuant to the Public Sector Act 2022, it is confirmed that: • There is no 'disciplinary finding' made against Officer Davey, with respect to the two allegations made; and • There is no 'disciplinary action' to be taken against Officer Davey, with respect to the two allegations made. f) The result of the decision being not fair and reasonable is: • The findings are set aside, and another decision is substituted - that is, that the two allegations against Officer Davey are now 'not substantiated'; • The outcome of the decision is set aside, so that Officer Davey will not now be "informally counselled in relation to these matters" – that is, no action will be taken by QFES against Officer Davey, in relation to the two allegations. 2. That the QFES appoints a new decision-maker to conduct a fresh review (the 'new decision') of CMS 1 – 1520 matters, contained in Ms Rutherford's 12 August 2022 decision. That fresh review is to be completed within 3 months. 3. Should Officer Davey then wish to appeal the outcome of the fresh review, all parties agree that the matter be allocated to Industrial Commissioner McLennan to hear and decide. 17 6 February 2024. -- 12 of 48 -- 13 [42] The effect of that order was that: • Officers Shuker and Blanchfield's complaints about Officer Davey's conduct at a union meeting are now "not substantiated", so QFES will take no action against Officer Davey (neither 'disciplinary action' or 'management action') with respect to those matters. • Another "fresh review" of Officer Davey's complaints against Officer Shuker only (CMS 1 – 1520) would be done. • The 6 October 2023 decision was not fair and reasonable. Third Internal review decision – Subject of this Appeal [43] On 27 June 2024, Chief Superintendent Kevin Reading18 provided his decision on the (third) internal review conducted. [44] That included an analysis of the issues examined by the review officer, together with the decision maker's findings, and recommendations for any follow up or remedial action arising from that.19 [45] In my view, Chief Superintendent Reading's decision comprised a thorough and careful examination of matters within scope. [46] Chief Superintendent Reading explained that: To be clear, the purpose of an internal review is not to conduct a new complaint process but rather to assess whether the original complaint process was conducted in a fair and reasonable manner. Further, an internal review should identify any areas of deficiency in the original complaint process and recommend remedial action to resolve those deficiencies if appropriate.20 [47] Chief Superintendent Reading provided a fair summary of the issues raised by Officer Davey in his first request for an internal review of the local level decision back in August 2022: • Ms Rutherford erroneously re-visited closed complaints CMS 1-499 and 1-500, and the email dated 19/2/2019 that was not subject to a formal complaint but had been dealt with at the local level. • Ms Rutherford's complaint process had not thoroughly addressed all the issues in your complaint with adequate inquiries. • Ms Rutherford did not explore your overarching concern that SO Shuker's behaviour amounted to bullying (because she looked at each example in isolation, and not as repeated behaviour). • You were not consulted prior to Ms Rutherford making her findings. 18 Metro Division. 19 27 June 2024 Decision, 1. 20 Ibid. -- 13 of 48 -- 14 • Ms Rutherford showed bias and was not impartial, by accepting SO Shuker's version of events over your own version.21 [48] Chief Superintendent Reading stated that his decision "examined ten (10) issues relating to the original complaint process managed by Ms Rutherford. These were the matters you identified (in your Request for Internal Review form dated 25 August 2022 and in discussions with the RO) as being deficient or unreasonable."22 [49] Chief Superintendent Reading decided that some remedial action was appropriate with respect to Issues 7 and 8, but that "For all other issues raised…no further action is required."23 [50] Chief Superintendent Reading's decision assessed ten issues raised by Officer Davey:24 Issue 1 – You claimed that Ms Rutherford did not explore your overarching concern that SO Shuker's behaviour was bullying (because she looked at each example in isolation, and not as repeated behaviour).25 Issue 2 – You claimed Ms Rutherford erroneously re-visited closed complaints CMS 1-499 and 1- 500.26 Issue 3 – You claimed that Ms Rutherford erroneously re-visited the incident within the email dated 19 February 2019, even though it had been dealt with at the local level.27 Issue 4 – You claimed that Ms Rutherford's statement made 11 times in her outcome advice that SO Shuker had the right to raise issues that he felt were not correct, was inappropriate.28 Issue 5 – Ms Rutherford's complaint process did not recognise all of the incidents raised by SO Shuker about you (that proved to be baseless), as amounting to bullying.29- Issue 6 – Ms Rutherford's complaint process with respect to your allegation of being excluded from workplace activities (rostering of staff in your shift), was inadequate.30 Issue 7 – Ms Rutherford's complaint process with respect to your allegation of being excluded from workplace activities (Blair Grice's funeral), was inadequate.31 Issue 8 – Email dealing with Union business via the QFES email system.32 Issue 9 – You were not consulted prior to Ms Rutherford making her findings.33 21 Ibid 2. 22 Ibid. 23 Ibid 12. 24 Ibid 3-12. 25 Ibid 3-5. 26 Ibid 5-6. 27 Ibid 6. 28 Ibid 7. 29 Ibid. 30 Ibid 8-9. 31 Ibid 9. 32 Ibid 10-11. 33 Ibid 11-12. -- 14 of 48 -- 15 Issue 10 – Ms Rutherford showed bias and was not impartial, by accepting SO Shuker's version of events over yours.34 Third Appeal [51] Officer Davey requested a 3-month35 long extension to the appeal period because he had just taking up a new position with QFES in Longreach. QFES did not object to that course.36 [52] Pursuant to s 564(2) of the Industrial Relations Act 2016 (Qld) (IR Act), I ordered that if Officer Davey wished to appeal the decision of Chief Superintendent Reading, such appeal must be submitted by 4 pm on 8 October 2024. [53] Less than an hour before that deadline, Officer Davey appealed the (third) internal review decision. Directions Order (3), issued 10 October 2024 [54] I directed the parties to file submissions, with respect to the QFES Decision of Chief Superintendent Reading dated 27 June 2024. [55] Those Directions were vacated shortly thereafter because an issue was raised by Officer Davey regarding whether QFES had conducted its third internal review according to my order. Scope of Third Internal Review [56] By email dated 15 October 2024, Officer Davey complained that QFES had not abided by the consent order issued on 6 February 2024. Officer Davey submitted the QFES erred because the new decision-maker appointed (Chief Superintendent Reading) had not conducted a "fresh review ('the new decision') of CMS 1-1520 matters, contained in Ms Rutherford's 12 August 2022 decision" – but had instead conducted "a fresh internal review" of those matters. Officer Davey submitted that the word "internal" had the effect of "changing completely the nature of the investigation. Instead of being about the matter itself it was about the way Ms Rutherford conducted the investigation." [57] Fundamentally, Officer Davey objected to Chief Superintendent Reading's approach to "undertake an internal review of a process and decision, and not 're-investigate' his complaint in entirety, as he had interpreted."37 Officer Davey's email reported Ms Melinda Hull's (QFES Review Officer) view that the QFES was required "to 'review' the decision in a method that we would undertake an internal review of a process and decision, and not 're-investigate' his complaint in its entirety, as he had 34 Ibid 12. 35 Email from Officer Davey dated 8 July 2024. 36 Email from QFES dated 11 July 2024. 37 Email from Officer Davey to Industrial Registry dated 15 October 2024. -- 15 of 48 -- 16 interpreted." Officer Davey concluded that "the latest investigation has been done in error!" [58] I note that the different views held by Officer Davey and QFES were discussed between them as early as 14 June 2024. Notwithstanding Officer Davey acknowledged he was advised by Ms Hull that he had "external review rights should he not think QFES has correctly interpreted this", he had not acted to obtain clarification from the Commission until well after the release of Chief Superintendent Reading's decision. [59] I wrote to the parties on 17 October 2024 to confirm QFES had complied with the 6 February consent order, as follows: … Background The brief background to this matter is that Officer Davey was given leave to appeal the decision of Chief Superintendent Kevin Reading, if he wished to do so. (Order issued 12 July 2024). The question then is: What was the "decision" that Chief Superintendent Kevin Reading was making? The answer to that question is contained in the Consent Order issued on 6 February 2024. That said the decision of Acting Chief Superintendent Simon Evans (dated 6 October 2023) was not fair and reasonable because (amongst other reasons) while he did address CMS 1-1639 matters, his decision did not address the remaining CMS 1-1520 matters that were also contained in Ms Rhonda Rutherford's 12 August 2022 decision. Therefore, I ordered "QFES appoint a new decision-maker to conduct a fresh review ('the new decision') of CMS 1-1520 matters, contained in Ms Rutherford's 12 August 2022 decision." The new decision-maker appointed by QFES was Chief Superintendent Kevin Reading. QFES has complied with 6 February 2024 Consent Order The context of the Order issued on 6 February 2024 is clear. QFES were to go back and do the element of the review that had been previously missed. That is, QFES had to "conduct a fresh review of CMS 1-1520 matters contained in Ms Rutherford's 12 August 2022 decision." I did not say the "fresh review" was to be undertaken differently (other than with respect to Order 1 (b)-(d), issued 6 February 2024) to the process undertaken by Acting Chief Superintendent Simon Evans (see letter dated 6 October 2023), which was also that "an internal review officer and decision maker" was appointed. I did not order that matters CMS 1-1520 were to be subject of a new investigation. The wording of the Order issued 6 February 2024 – that "QFES appoints a new decision maker to conduct a fresh review" – is the same as the wording of the Order dated 27 June 2023. That resulted in the appointment of Acting Chief Superintendent Simon Evans, who conducted an "internal review" (see letter dated 6 October 2023). Simply, what was previously missed in the review conducted by Acting Chief Superintendent Simon Evans still needed to be done – that is, the review of CMS 1-1520 matters. Therefore, Ms Hull's interpretation of my Order is correct. The QFES's task was to "review the decision" as "an internal review of a process and decision, and not 're-investigate' his complaint in entirety, as [Officer Davey] had interpreted." (See email dated 15 October 2024). I note the decision letter of Chief Superintendent Kevin Reading comprises that review of CMS 1- 1520 matters contained in Ms Rutherford's 12 August 2022 decision - That is "the decision" that Officer Davey may appeal. (As point 3 of my Order issued 6 February 2024 states, Officer Davey has the right "to appeal the outcome of the fresh review"). -- 16 of 48 -- 17 Officer Davey's appeal On 8 October 2024, Officer Davey advised that he wished "to appeal the decision of Chief Superintendent Kevin Reading and the investigation of Rhonda Rutherford and her findings into CMS 1-1520…" The question for my decision will be whether or not Chief Superintendent Kevin Reading's decision is 'fair and reasonable' - having regard to the evidence available to the decision maker when the decision was made. [60] I explained to Officer Davey that his next step was to advise both QFES and the Industrial Registry of his "grounds of appeal" by 25 October 2024, should he wish to proceed with his appeal against the 27 June 2024 decision of Chief Superintendent Reading. When that was received, the parties would be directed to make submissions regarding why they do (or do not) contend that decision is not fair and reasonable. Appeal Grounds [61] Officer Davey filed his grounds for appeal on 25 October 2024. [62] In summary, Officer Davey's appeal grounds included: • There is no evidence to support the "broad and general statements"38 contained in the third internal review decision. Chief Superintendent Reading's reasoning did not reference the "proof" that Officer Davey provided.39 • Officer Davey's witnesses were not contacted.40 • Though Chief Superintendent Reading's decision "repeatedly identifies failures in Ms Rutherford's investigation", he nonetheless confirmed it to be "fair and reasonable".41 • Officer Shuker has tried to have Officer Davey disciplined on 10 occasions, though all have been "proved baseless." Officer Davey contended that met the definition of "workplace bullying"42 and that the situation is continuing to have a profound effect on him.43 [63] In addition, Officer Davey's submissions included rebuttal of Chief Superintendent Reading's reasoning and finding, against each particular issue. Those submissions were 38 Appellant's submissions filed 24 October 2024, 1. 39 Ibid. 40 Ibid. 41 Ibid. 42 Officer Davey noted that 8 IEGs were lodged against him – 6 of those raised by Officer Shuker and the remaining 2 were in connection with Officer Shuker. Officer Davey said "One of these IEG's was that ridiculous that management did not even raise it with me"; Appellant's submissions filed 24 October 2024, 3-4. 43 Appellant's submissions filed 24 October 2024, 4-5. -- 17 of 48 -- 18 presented as remarks peppered throughout the third internal review decision. To the extent I am able to do so, they are summarised under each specific 'Issue' below.44 Directions Order (4), issued 29 October 2024 [64] I directed the parties to file submissions, with respect to the QFES Decision of Chief Superintendent Reading dated 27 June 2024. [65] The Respondent's submissions were filed on 5 November 2024. [66] Officer Davey's reply submissions were filed on 12 November 2024. Question to be Decided [67] The question for my determination is whether or not Chief Superintendent Reading's fresh review decision (of CMS 1-1520 matters contained in Ms Rutherford's 12 August 2022 outcome advice) was 'fair and reasonable'. [68] Section 562B of the IR Act provides that "The commission must decide the appeal by reviewing the decision appealed against" to determine "whether the decision…was fair and reasonable". For an appeal of this type (a "fair treatment appeal"), the commission decides the appeal "having regard to the evidence available to the decision maker when the decision was made." [69] It is convenient to examine each of the ten issues contained in Chief Superintendent Reading's decision individually, as I have done below at [72]-[155]. Fair and Reasonable [70] In the recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,45 Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals. [71] In State of Queensland (Queensland Health) v Hume,46 his Honour explained (citations omitted): [41] Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '… fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons. [42] First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '… fair and reasonable', are used in other than their ordinary meaning. 44 Ibid 4-22. 45 [2024] ICQ 3. 46 Ibid. -- 18 of 48 -- 19 [43] The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed. However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable. The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review. That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness. [44] Similar arguments made to the Commission have been rejected by the Commission. [45] Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning. … [48] Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely: • that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and • that the legislative intention is that those words, that make up the phrase '… fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning. [49] The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '… free from bias, dishonesty, or injustice' and the word 'reasonable' means '… agreeable to reason or sound judgment'. Whether a decision the subject of a public service appeal is '… fair and reasonable' is a question of fact. [50] Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '… including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act. [51] By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole. … [53] The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department. Issue 1 - Consideration [72] Chief Superintendent Reading's decision set out Issue 1, findings and remedies, as follows:47 47 27 June 2024 Decision. -- 19 of 48 -- 20 Issue 1 – You claimed that Ms Rutherford did not explore your overarching concern that SO Shuker's behaviour was bullying (because she looked at each example in isolation, and not as repeated behaviour). … My finding in relation to issue 1 Ms Rutherford's outcome advice and report to management made an overall finding that you were not being "bullied" by SO Shuker. This outcome did not meet your expectations. …Ms Rutherford's decision in relation to your overarching concern was fair and reasonable in the circumstances. Remedy No further action.48 [73] Officer Davey submitted that was not fair and reasonable because:49 • Officer Davey's IEG submitted on 10 December 2021 complained of "persistent bullying" by Officer Shuker for many years and listed "3 dot points of behaviour which are typical indicators of bullying". Officer Davey sent a further email on 15 December 2021 stating, "Further to IEG I lodged on the 10-12-21…regarding persistent bullying by Ian Shuker against myself." He submitted the nature of the complaint as "workplace bullying" could not be misinterpreted. • Officer Davey provided a timeline of incidents between 2013 to March 2023. • Officer Davey said he had not provided Ms Rutherford with a timeline of events to show the pattern of behaviour complained of because "she never inquired" and she did not "create an opportunity to discuss everything that was going on" because the interview went for 45 minutes. • Officer Davey asserted that "the repeatedly mass emailed letters critically accusing me before work colleagues" was malicious and constituted bullying. • Officer Davey asserted that emails were sent by Officer Shuker to QFES colleagues about union matters to "publicly humiliate me!" Officer Davey also complained that Officer Shuker had caused him "public humiliation at union meetings." • Officer Davey referred to the "indisputable proof in the form of recording of the union meeting…" and proposed that the QIRC listen to the recording and suppress it from release.50 48 Ibid 3-5. 49 Appellant's submissions filed 25 October 2024, 3-7. 50 Appellant's reply submissions filed 12 November 2024. -- 20 of 48 -- 21 • Officer Davey rejected the view that QFES should not insert itself in happenings at a past evening union meeting, and suggested that position may alter if someone were to be physically assaulted.51 • Officer Davey referred to the allegation that Officer Shuker told Officer Bob Efimenko that "he had enough on [Officer Davey] to get [him] sacked" on 7 March 2022. • Ms Rutherford did not record in her outcome advice whether or not she had reviewed the Complaint Management System to ascertain whether Officer Shuker was involved in complaints against Officer Davey. Officer Davey submitted that Ms Rutherford had "never investigated at all that the 7 official complaints against me and the multiple unofficial complaints…were all raised by Ian Shuker." • Officer Davey said Ms Rutherford did not interview witnesses or "decision makers from previous incidents", including Acting Assistant Commissioner Steve Smith back in 2019. • Officer Davey said Ms Rutherford should not have validated Officer Shuker's conduct as "part of his nature." • Officer Davey submitted the workplace bullying did, and does, impact his health and safety.52 • Officer Davey submitted that other officers were also subjected to workplace bullying by Officer Shuker.53 [74] The Respondent submitted that Chief Superintendent Reading's decision was fair and reasonable because:54 • Chief Superintendent Reading's decision was based on the evidence available and each issue raised by Officer Davey was carefully analysed. • There are no disciplinary actions against Officer Davey – and any formal or informal counselling has been retracted in accordance with the Consent Order of Commissioner McLennan dated 6 February 2024. • With respect to Officer Davey's submissions regarding the process undertaken by Ms Rutherford, the Respondent submitted that: 51 Appellant's submissions filed 25 October 2024, 21; Appellant's reply submissions filed 12 November 2024. 52 Significantly, Ms Rutherford's outcome advice was given on 12 August 2022. Officer Davey's timeline included three alleged incident examples after that date. 53 Appellant's reply submissions filed 12 November 2024. 54 Respondent's submissions filed 5 November 2024. -- 21 of 48 -- 22 o Witnesses were interviewed to inform Ms Rutherford's outcome advice, "however due to requests for anonymity from those witnesses, the Respondent is unable to confirm further details expect that a number of witnesses were interviewed."55 o Officer Davey's complaint that Ms Rutherford preferred Officer Shuker's version of events pertained to a union process, that is out of scope of this Decision. • With respect to Officer Davey's submissions that he was subject to workplace bullying, the Respondent submitted that: o Section 272 of the IR Act tests for workplace bullying were not met because the behaviour considered by Ms Rutherford in the IEG was not "unreasonable" - and therefore it followed it was not "repeated unreasonable" behaviour. o Officer Davey's complaints regarding emails about union business were considered by Chief Superintendent Reading, who determined that the Code of Conduct was not breached by their content. Concerns about the conduct of union business should be referred by members to their Union, not employer. o Eight IEGs were filed against Officer Davey and a Senior Manager spoke with him about allegations made by Officer Shuker. o Officer Davey stated the matter has had significant impact on his mental and physical health. o Officer Davey and Officer Shuker's substantive positions are not at different stations in line with the recommendation of Commissioner McLennan of 6 February 2024. Issue 1 - Findings [75] I have explained my consideration of this element comprehensively in the consecutive sections of this Decision below that are titled "Available remedies versus outcome sought", "Workplace Bullying", "Officer Davey's persistent calls for re-investigating his complaints against Officer Shuker", "Continued complaints about the local union meeting" and "Impact on Officer Davey by time taken to conclude this matter". 55 Respondent's submissions filed 5 November 2024, [13]. -- 22 of 48 -- 23 [76] In summary, Officer Davey's assertions that Officer Shuker "bullied" him cannot succeed because the legislative tests for behaviour to be "repeated" and "unreasonable" are not made out, pursuant to s 272 of the IR Act.56 [77] In my view, Officer Davey cannot now complain that Ms Rutherford did not investigate specific incidents if he did not identify them clearly in his initiating IEG. The onus was squarely on Officer Davey to do so at the time he lodged the IEG. The identified incidents contained in that document are the matters that Ms Rutherford was bound to consider. It is not reasonable for Officer Davey to task Ms Rutherford with the conduct of a general fishing expedition for evidence that bullying occurred. Similarly, it is somewhat disingenuous for Officer Davey to now submit he had not provided Ms Rutherford with a timeline of events to show the pattern of behaviour complained of because "she never inquired". It is clear, or ought to be clear, that any internal review that is subsequently conducted is of that initial outcome advice given by Ms Rutherford – it should not generally be expected that internal reviews must respond to "shifting sands of an undefined argument" and I have found the evolutionary nature of Officer Davey's complaint somewhat concerning in that regard. [78] Officer Davey appears unfazed by the Commission's repeated direction that happenings at the evening union meeting are not in scope of this Decision, given his submissions continue with respect to that. With respect to Officer Davey's inquiry as to what would occur in the case of a physical assault, that would then obviously become a police matter. That submission is self-evidently unhelpful. [79] Officer Davey again raised his allegation that Officer Shuker told Officer Bob Efimenko that "he had enough on [Officer Davey] to get [him] sacked" on 7 March 2022. In my view, Ms Rutherford took that allegation as far as she reasonably could and her outcome advice recorded that she asked both Officer Shuker and Officer Efimenko about it. That particular allegation could not be progressed however because of Officer Efimenko's poor recall, though Ms Rutherford asked him to contact her "if he remembered anything further." Presumably, he did not do so. In circumstances where the crucial witness to the incident had such patchy recollection of the matter, Ms Rutherford could not fairly progress it any further. Procedural fairness must also be applied to Officer Shuker, of course. [80] For those reasons – and the further explanation of my reasoning in the sections referred to below, I find Chief Superintendent Reading's decision with respect to Issue 1 was fair and reasonable. 56 Industrial Relations Act 2016 (Qld) s 272(1)(a). -- 23 of 48 -- 24 Issue 2 – Consideration [81] Chief Superintendent Reading's decision set out Issue 2, findings and remedies, as follows:57 Issue 2 – You claimed Ms Rutherford erroneously re-visited closed complaints CMS 1-499 and 1- 500. … My finding in relation to issue 2 Ms Rutherford did discuss matters relating to CMS 1-499 and 1-500 during the complaint process, in her report to management and in her outcome advice to you. You are correct that both parties should have had the opportunity to contribute to the conclusions drawn, however contemporaneous notes made, and documents gathered, by Ms Rutherford indicate the issues were discussed with you, or at least partially, in your very first meeting with her during the process. Following your appeal to the QIRC, Ms Rutherford therefore included these matters in administrative error. However, I have found that the inclusion of these matters in her outcome advice has no material impact on the reasonableness or fairness of her decision dated 12 August 2022. Ms Rutherford's actions regarding this concern were fair and reasonable in the circumstances. Remedy No further action.58 [82] Officer Davey submitted that was not fair and reasonable because:59 • Officer Davey denied Ms Rutherford's recollection that both he and Officer Shuker raised CMS 1-499 and 1-500 issues during the complaint process. He submitted that "This is not true. Can be proved by Ms Rutherford's notes, there will be no record of ever having raised this with me. It was before QIRC. I would have told her…" • Officer Davey accepted that "The Bronto issue was included in my discussion with [Ms] Rutherford as an example of [Officer] Shuker's behaviour over the years supporting persistent bullying. 1-499 1-500 related to complaints by [Officers] Shuker + Blanchfield…" • Officer Davey stated that Ms Rutherford had not discussed CMS 1-499 and 1-500 complaints with him and was therefore unaware the matters were before the QIRC. • Officer Davey submitted that Ms Rutherford "…started to deliver her findings until I told her it was before the QIRC. She replied, whilst pulling pages out of her report, that that would have saved her 2 pages of writing." 57 27 June 2024 Decision. 58 Ibid 5-6. 59 Appellant's submissions filed 25 October 2024, 8-9. -- 24 of 48 -- 25 [83] The Respondent's submissions asserted that Chief Superintendent Reading's decision was fair and reasonable, in reliance on the analysis and reasoning contained therein. Issue 2 - Findings [84] Chief Superintendent Reading noted that Officer Davey was "not seeking a specific remedy for including this issue" in his request for internal review form but wanted to demonstrate "the incompetent investigation." [85] I am persuaded that Ms Rutherford was unaware of the status of those particular matters at the time, as supported by the case notes and documentation. Such documentary evidence should be weighed more heavily than individual recollections, given the time lapse. [86] In my view, Ms Rutherford re-visited CMS 1-499 and 1-500 because they were drawn to her notice, under the contention they represented examples of bullying behaviour. For that reason, Ms Rutherford discussed the issue with Officer Davey and Officer Shuker (as supported by her meeting notes). [87] In these circumstances, I believe Ms Rutherford was led into error. Her notes of what was discussed at the first meeting with Officer Davey support a discussion of those issues did occur. [88] Ms Rutherford's outcome advice contained reference to CMS 1-499 and 1-500 matters, though should not have. I accept this was a genuine mistake. Officer Davey's recollection that Ms Rutherford pulled those 2 pages from her report supports Ms Rutherford's statement that she believed she had removed those sections from her outcome advice. [89] I note an earlier internal review conducted by A/Chief Superintendent Brad Moore determined that Ms Rutherford's outcome advice included reference to these matters but should not have – and on that basis the decision on that particular issue was not fair and reasonable. Although that earlier internal review decision was appealed by Officer Davey and so no longer stands - as it is the third internal review that is subject of this appeal - I support the assessment of this point as formerly made by A/Chief Superintendent Moore. [90] With respect to Issue 2, I find that it was not fair and reasonable for Ms Rutherford to have included reference to complaints 1-499 and 1-500, that were subject to a QIRC review. It follows then that Chief Superintendent Reading's determination with respect to Issue 2 was not fair and reasonable. -- 25 of 48 -- 26 Issue 3 - Consideration [91] Chief Superintendent Reading's decision set out issue 3, findings and remedies, as follows:60 Issue 3 – You claimed that Ms Rutherford erroneously re-visited the incident within the email dated 19 February 2019, even though it had been dealt with at the local level. … My finding in relation to issue 3 Notwithstanding the extraneous commentary regarding an operational issue that you had taken exception to, Ms Rutherford made a finding that SO Shuker followed correct protocol with raising his concerns regarding an operational issue, based on sufficient information and analysis. Further, Ms Rutherford found that SO Chuker's email dated 19 February 2019 did not contribute to a pattern of bullying behaviour, and this was reasonable in the circumstances. Remedy No further action.61 [92] Officer Davey submitted that was not fair and reasonable because:62 • Officer Davey submitted that: Ms Rutherford "never raised it with me. She never raised it with Investigating Officer Les Williams nor decision maker Steve Smith…she has a duty to hear both sides of the story and collect pertinent information…" • Officer Davey believed Officer Shuker should not have raised the issue because FESSN was notified. Further, if Officer Shuker's intentions were genuine, there was no need for him to include in the email "7 people who weren't at the job nor had anything to do with it other than trying to humiliate me." [93] The Respondent's submissions asserted that Chief Superintendent Reading's decision was fair and reasonable, in reliance on the analysis and reasoning contained therein. Issue 3 - Findings [94] With respect to the FESSN issue,63 I agree with Ms Rutherford that FESSN should be engaged to support firefighters who attend damaging incidents, in accordance with the policy. It was reasonable for Officer Shuker to raise whether that had occurred, as a legitimate workplace health and safety issue. That is not workplace bullying. 60 27 June 2024 Decision. 61 Ibid 6. 62 Appellant's submissions filed 25 October 2024, 9-10. 63 This was "CMS 1-1520 matter, (1)" in Ms Rutherford's decision and "Issue 3" in Chief Superintendent Reading's decision. -- 26 of 48 -- 27 [95] Further, Ms Rutherford's outcome advice addressed Officer Davey's complaint that "SO Shuker has gone in and checked his completed fire reports and reported deemed failings of his actions to senior officers." She reported Officer Shuker's recollection that he had checked Officer Davey's fire reports after incidents when Officer Shuker believed that FESSN should have been engaged, in order to get a fire report number. Given the related issue of Officer Shuker's insistence that FESSN support be engaged per the policy, it makes sense that he would obtain a fire report number to identify the particular incident.64 [96] While Officer Davey complained that "Ms Rutherford erroneously re-visited…[the FESSN matter], even though it had been dealt with at local level", Chief Superintendent Reading observed that "It was appropriate for Ms Rutherford to consider this incident because [Officer Davey] had indicated it was an example of bullying."65 I agree with that conclusion. Ms Rutherford's outcome advice plainly noted specific reference to the 19/02/2019 email as the first of Officer Davey's CMS 1-1520 complaints, alleging Officer Shuker unjustly criticised him. It is nonsensical for Officer Davey to have himself raised the email, then argued Ms Rutherford should not have "re-visited" it. [97] It is also curious that Officer Davey submitted that: Ms Rutherford "never raised it with me. She never raised it with Investigating Officer Les Williams nor decision maker Steve Smith…she has a duty to hear both sides of the story and collect pertinent information…" Ms Rutherford's outcome advice records statements obtained from Officer Davey, Officer Shuker and Chief Superintendent Steve Smith (who it was then apparently raised with). Ms Rutherford also referred to the documentary evidence of the email exchange itself, that demonstrated A/Inspector Brad Stockwell had not earlier raised the issue directly with Officer Davey as he had intended to. [98] I agree with Chief Superintendent Reading's reasoning that the relevant point is "to consider whether SO Shuker raised a concern with a genuine belief that there was an issue, and that he raised it in a reasonable way. Ms Rutherford's analysis of this matter comes to a conclusion that you did not act in line with the protocol, when this was not necessary to make a finding…Notwithstanding the extraneous commentary…Ms Rutherford made a finding that SO Shuker followed correct protocol with raising his concerns regarding an operational issue, based on sufficient information and analysis."66 [99] I support Chief Superintendent Reading's conclusion with respect to Issue 3. That was fair and reasonable. 64 This was "CMS 1-1520 matter, (2)(A)" in Ms Rutherford's decision. 65 Chief Superintendent Reading's decision, 6. 66 Ibid. -- 27 of 48 -- 28 Issue 4 - Consideration [100] Chief Superintendent Reading's decision set out issue 4, findings and remedies, as follows:67 Issue 4 – You claimed that Ms Rutherford's statement made 11 times in her outcome advice that SO Shuker had the right to raise issues that he felt were not correct, was inappropriate. … My finding in relation to issue 4 In the circumstances, Ms Rutherford's commentary in her outcome advice to you about SO Shuker's right to raise workplace issues, was fair and reasonable. Remedy No further action.68 [101] Officer Davey submitted that was not fair and reasonable because69 Ms Rutherford should not have "approved [Officer] Shuker's behaviour" by stating he "has a need to right wrongs that he has identified. The point is that just because [Officer] Shuker thinks something is wrong doesn't make it wrong and furthermore he has no right to try to force someone to do what he thinks they should do."70 [102] The Respondent's submissions asserted that Chief Superintendent Reading's decision was fair and reasonable, in reliance on the analysis and reasoning contained therein. Issue 4 - Findings [103] In my view, Chief Superintendent Reading fairly reasoned that "It was appropriate for Ms Rutherford to…examined in a bullying allegation, whether SO Shuker had the workplace right to raise a concern (as well as examining the reasonableness of doing so)."71 [104] Chief Superintendent Reading also reasonably concluded that "It is possible and likely that SO Shuker's propensity for raising issues with management instead of directly with you, may have arisen from the deterioration of your relationship over the years." Chief Superintendent Reading referred to the 19 February 2019 email about FESSN engagement as an example of Officer Davey clearly expressing to Officer Shuker that he was "not receptive to feedback or learning…" [105] With respect to happenings at the local union meeting on the evening of 14 December 2021,72 as referred to in Chief Superintendent Reading's decision briefly, I have earlier explained that complaints made against Officer Davey by Officer Shuker and Officer 67 27 June 2024 Decision. 68 Ibid 7. 69 Appellant's submissions filed 25 October 2024, 10-11. 70 Ibid 11. 71 Reading decision, 7. 72 This was "CMS 1-1520 matter, (5)" in Ms Rutherford's decision. -- 28 of 48 -- 29 Blanchfield (CMS 1-1639) are out of scope of this Decision. Members have recourse to the UFUQ for any complaints about the conduct of a local union meeting. In this case, Officer Davey complained that Officer Shuker spoke about the IEG at the union meeting – and then Officer Shuker and Officer Blanchfield made the same complaint about Officer Davey. Ms Rutherford's outcome advice was that both men "understand the requirements for keeping grievances confidential" and "it could be said that both parties spoke about the IEG at the union meeting…"73 Chief Superintendent Reading correctly observed that outcome advice was prepared before the QIRC determination that QFES should not have inquired into business at a union meeting.74 He further noted that "It is understood that [Officer Davey] had not approached the UFUQ to assist you with managing the issues raised by the Rockhampton Branch membership during your presidency."75 In my view, that exchange does not meet the legislative tests for "workplace bullying". [106] I support Chief Superintendent Reading's conclusion with respect to Issue 4. That was fair and reasonable. Issue 5 - Consideration [107] Chief Superintendent Reading's decision set out issue 5, findings and remedies, as follows:76 Issue 5 – Ms Rutherford's complaint process did not recognise all of the incidents raised by SO Shuker about you (that proved to be baseless), as amounting to bullying. I believe I have already sufficiently addressed this in other issues discussed.77 [108] Officer Davey did not provide any commentary specific to Issue 5 in his submissions.78 The workplace bullying contention has been comprehensively addressed under Issue 1 of this Decision. [109] The Respondent's submissions asserted that Chief Superintendent Reading's decision was fair and reasonable, in reliance on the analysis and reasoning contained therein. Issue 5 - Findings [110] Officer Davey had complained that the 'Yogolicious'79 inquiry was an example of workplace bullying because the allegation was "proved to be baseless".80 73 This was "CMS 1-1520 matter, (5)" in Ms Rutherford's decision. 74 QIRC Consent Order (1)(d) issued 6 February 2024. 75 "Issue 4" in Chief Superintendent Reading's decision. 76 27 June 2024 Decision. 77 Ibid 7. 78 Appellant's submissions filed 25 October 2024, 11. 79 This was "CMS 1-1520 matter, (3)" in Ms Rutherford's decision and "Issue 5" in Chief Superintendent Reading's decision. 80 "Issue 1" in Chief Superintendent Reading's decision, 4. -- 29 of 48 -- 30 [111] Ms Rutherford considered Officer Davey's complaint that a "baseless" allegation was put to him that his "girlfriend worked at a catering company 'Yogolicious', used by QFES at a training course which SO Davey was the training officer, implying there was a conflict of interest." Ms Rutherford rejected Officer Davey's contention that the allegation made constituted workplace bullying. Ms Rutherford noted that raising "a possible conflict of interest in procurement of services is every staff member's responsibility…Raising the concern to have it looked into was correct procedure and in line with the Code of Conduct." Ms Rutherford observed that Officer Davey was "exonerated from any wrongdoing." She determined that raising an issue in those circumstances did not constitute workplace bullying. [112] I agree with Ms Rutherford's conclusion – the inquiry was raised, put to Officer Davey for his comment, and his response was accepted. That ought to have been the end of the matter. The course of events, as described in Ms Rutherford's outcome advice, was fair and reasonable. [113] Chief Superintendent Reading's decision noted Officer Davey had raised that "Ms Rutherford's complaint process did not recognise all of the incidents raised by SO Shuker about you (that proved to be baseless), as amounting to bullying."81 Chief Superintendent Reading had earlier reasoned that (emphasis added): Although it was not explicitly stated by you in your grievance, you have indicated to the RO that you did not intend on those matters being the only incidents explored…It could be said from your response to the RO, that you felt unable to request Ms Rutherford examine a connection between the number of unsubstantiated complaints/issues raised about your work by SO Shuker and whether that was unreasonable conduct. Further, you stated that Ms Rutherford did not include in her analysis any comment indicating she had reviewed the Complaint Management System to identify evidence whether SO Shuker was involved in complaints about you.82 [114] As I have earlier expressed, it was not for Ms Rutherford to be aware of, or determine, complaints that were not expressly put before her. The IEG Directive requires the aggrieved employee "to submit their individual employee grievance in writing"83 and "as soon as reasonably possible after the…behaviour has occurred."84 Ms Rutherford ought not have been expected to capture the essence of Officer Davey's suspicions, proceed to make his case for him, then determine it – Officer Shuker would have had a most legitimate complaint had she done so. [115] With respect to Issue 5 (and related Issue 1), Chief Superintendent Reading's conclusions were fair and reasonable. 81 "Issue 5" in Chief Superintendent Reading's decision. 82 "Issue 1" in Chief Superintendent Reading's decision. 83 IEG Directive, cl 9.1(a). 84 IEG Directive, cl 8.1. -- 30 of 48 -- 31 Issue 6 - Consideration [116] Chief Superintendent Reading's decision set out issue 6, findings and remedies, as follows:85 Issue 6 – Ms Rutherford's complaint process with respect to your allegation of being excluded from workplace activities (rostering of staff in your shift), was inadequate. … My finding in relation to issue 6 Ms Rutherford did include an extraneous comment about SO Shuker's station location in her outcome advice to you, however that was of no substantive consequence to her findings. Ms Rutherford's decision during the process not to contact Brad Boyes as a potential witness was reasonable in the circumstances. Overall, after considering the issues discussed, Ms Rutherford's inquiries and her finding in relation to this matter were fair and reasonable in the circumstances. Remedy No further action.86 [117] Officer Davey did not provide any commentary specific to Issue 6 in his submissions, other than to highlight sections of Chief Superintendent Reading's decision where he noted Officer Brad Boyes was not contacted as a witness; reference to a "lost opportunity to probe you for further examples of the behaviours continuation after the phone conversation you had with SO Shuker"; the impact of the behaviour on Officer Davey; and the "extraneous comment about SO Shuker's station location."87 I will proceed on the basis that the sections highlighted by Officer Davey comprise the areas he takes issue with. I again note that the workplace bullying contention has been comprehensively addressed under Issue 1 of this Decision. [118] The Respondent's submissions asserted that Chief Superintendent Reading's decision was fair and reasonable, in reliance on the analysis and reasoning contained therein. Issue 6 - Findings [119] The "rostering conflict" and "transfer situation" were specifically referenced in Issue 6 of Chief Superintendent Reading's decision.88 [120] Ms Rutherford considered Officer Davey's complaint that he was not consulted about roster planning and was not included in the email when the roster was sent out. Her 85 27 June 2024 Decision. 86 Ibid 8-9. 87 Appellant's submissions filed 25 October 2024, 11. 88 This was "CMS 1-1520 matter, (4)(A)" in Ms Rutherford's decision and "Issue 6" in Chief Superintendent Reading's decision. -- 31 of 48 -- 32 decision records the perspectives of both Officer Davey and Officer Shuker on those matters, noting "The process is more definitive now." [121] Ms Rutherford also described the "transfer situation" that Officer Davey was unhappy about. Ms Rutherford wrote (emphasis added):89 … SO Shuker said that if SO Davey had a problem with not being communicated to then he should have raised it at the time. He said that he was the newer and more junior SO and was acting under the guidance of SO Peter Guley. If there was a problem he should have raised it with SO Guley at the time. SO Shuker did recall a 'transfer situation' a few years ago that SO Davey might be referring to…a few years ago a firefighter, Brad Boyce was moving [stations]…SO Davey called [the station]…upon learning of the move and was unhappy about the move. Again, SO Shuker said he was one of 2 SOs at [the station] at the time and he was not solely in charge of rostering and that he was by far the junior SO. The firefighter had stated that he would prefer to move to [the station] and that move was instigated. [122] Ms Rutherford concluded that "I did not find evidence that SO Shuker was deliberately excluding SO Davey from workplace activities. SO Davey should have raised his issues with lack of communication over rostering…at the time." [123] Chief Superintendent Reading's decision noted Officer Davey was concerned that "Ms Rutherford's complaint process with respect to your allegation of being excluded from workplace activities (rostering of staff in you shift) was inadequate." Chief Superintendent Reading confirmed that Ms Rutherford's decision "not to contact Brad Boyes as a potential witness was reasonable" because SO Shuker had conceded that Officer Davey had called "indicating you were unhappy with Brad's transfer". I agree that in those circumstances, Ms Rutherford did not need to contact Officer Boyes – and as Chief Superintendent Reading has observed, Officer Davey "could not unequivocally say the call happened in Brad's presence' in any case. [124] Regarding Ms Rutherford's response to Officer Davey's rostering exclusion complaint, Chief Superintendent Reading very fairly assessed and considered that Officer Davey had (emphasis added): …pointed out in [his] request for internal review that [he] had raised it at the time with SO Shuker and that it kept happening… … Ms Rutherford's outcome advice appeared to indicate she had not interrogated this issue further, and it was perhaps a lost opportunity to probe you for a further example of the behaviour's continuation after the phone conversation you had with SO Shuker. … The point you made about the importance/reason behind each SOs input appears rational and would have caused frustration to any SO in terms of planning for skills and assessments of the firefighters in their crew. It is curious however that if you were aggrieved by SO Shuker not honouring your wishes to be included (after your phone call to SO Shuker in circa 2018/19), why 89 This was "CMS 1-1520 matter, (4)(A)" in Ms Rutherford's decision. -- 32 of 48 -- 33 you did not raise the issue again until December 2021. This may speak to the actual impact the behaviour reasonably had on you at the time…given that you did not appear to escalate the concern about any serious harm being done to your planning capacity (or to your wellbeing) because of SO Shuker's behaviour.90 [125] Ultimately, Chief Superintendent Reading affirmed Ms Rutherford's determination as fair and reasonable. [126] My comments above regarding the IEG Directive requirement for aggrieved employees to make written complaint "as soon as reasonably possible after the…behaviour has occurred"91 remains apposite here. If that had been done in this case, the roster process and protocols could have been established or explained, and Officer Davey's continued frustration and annoyance at the (real or perceived) slight may have been avoided. I note, as did Chief Superintendent Reading, that Officer Davey submitted he had raised it at the time with SO Shuker and that it "kept happening." I concur with Chief Superintendent Reading's remark that Ms Rutherford "had not interrogated this issue further, and it was perhaps a lost opportunity to probe you for a further example of the behaviour's continuation after the phone conversation you had with SO Shuker." However, the onus was on Officer Davey as the employee making the complaint to provide all relevant information to Ms Rutherford. [127] I also note SO Shuker's account to Ms Rutherford that Officer Davey had only called the station to complain about Brad Boyes' transfer, not being left out of rostering determinations. I cannot be persuaded to the required standard that Officer Davey's report is correct and Officer Shuker's recall was not. If Officer Davey was so aggrieved by what had occurred, it is hard to fathom why he waited so long before raising the grievance. [128] Similarly with the transfer situation, although Officer Davey apparently expressed his unhappiness with the move by calling the other station at the time, Ms Rutherford was placed in a most difficult position of trying to unpick what had occurred "a few years ago." [129] With respect to Issue 6, Chief Superintendent Reading's conclusions were fair and reasonable. Issue 7 - Consideration [130] Chief Superintendent Reading's decision set out issue 7, findings and remedies, as follows:92 90 Chief Superintendent Reading's decision, 8. 91 IEG Directive, cl 8.1. 92 27 June 2024 Decision. -- 33 of 48 -- 34 Issue 7 – Ms Rutherford's complaint process with respect to your allegation of being excluded from workplace activities (Blair Grice's funeral), was inadequate. … My finding in relation to issue 7 Ms Rutherford did include an extraneous comment in her outcome advice to you that could be perceived as insensitive in the circumstances. The comment however was of no substantive consequence to her findings. Ms Rutherford's decision during the process not to contact Assistant Commissioner Darryl King as a potential witness was reasonable in the circumstances. Overall, after considering the issues discussed, Ms Rutherford's inquiries and finding in relation to this matter were fair and reasonable in the circumstances. Remedy That I provide advice to Ms Rutherford that in future complaint processes, she be mindful of how outcome advice could be interpreted by parties to the complaint.93 [131] Officer Davey submitted that Chief Superintendent Reading's decision was not fair and reasonable because94 of Ms Rutherford's misquoting of Officer Davey's relationship with Anthony Grice was not of minor consequence. Officer Davey contended that it reflected the overall attention to detail and quality of the investigation conducted by Ms Rutherford. Officer Davey proceeded then to highlight sections of Chief Superintendent Reading's decision describing that Ms Rutherford included an "extraneous comment in her outcome advice…that could be perceived as insensitive"; Ms Rutherford's unawareness that there was "another potential witness (Kenton Robertson), however explained she did not think conversations held between other staff were relevant in making a finding"; and Ms Rutherford's decision not to contact retired Assistant Commissioner Darryl King to inquire whether he had tasked Officer Shuker to coordinate QFES participation in Blair Grice's funeral. [132] The Respondent submissions noted that Chief Superintendent Reading's decision did identify some flaws in Ms Rutherford's outcome advice and appropriate remedies were provided, though that did not disturb his internal review conclusion that the outcome advice was fair and reasonable. That was noted in Chief Superintendent Reading's decision at Issue 7 and Issue 8. Issue 7 - Findings [133] With respect to arrangements for Blair Grice's funeral,95 Ms Rutherford considered matters including Officer Shuker's assertion that (now retired) Assistant Commissioner Darryl King had asked him to coordinate QFES' involvement in the funeral, and that 93 27 June 2024 Decision, 9. 94 Appellant's submissions filed 25 October 2024, 12-13. 95 This was "CMS 1-1520 matter, (4)(B)" in Ms Rutherford's decision and "Issue 7" in Chief Superintendent Reading's decision. -- 34 of 48 -- 35 occurred with support of his grieving family. Ms Rutherford noted that "SO Shuker has provided an explanation of how the arrangements for Blair's funeral came about and has provided email communications to support his conversations with the family." Ms Rutherford evidently believed Officer Shuker provided a credible account of the matter, supported by documentary evidence. Ms Rutherford's outcome advice also reasonably recorded that the family's wishes were that "only 1 or 2 QFES people were to speak – one to read the Fireman's Prayer and 1 to read Blair's history / anecdotes." Ms Rutherford referred to documentary evidence of the 9 July 2021 email exchange between Officer Davey and Officer Shuker, that confirms SO Davey wanted only to do the eulogy and did not want to do the Fireman's Prayer. Similarly, Officer Davey was offered to do the "last turn out but…declined." It is evident then that Officer Davey adopted an intransigent position by only being prepared to do the eulogy - and rejecting other opportunities to have a role in the funeral that were offered to him. [134] While Officer Davey complained that he was "misquoted by Ms Rutherford in relation to [his] relationship with Blair Grice's brother, Anthony Grice", I agree with Chief Superintendent Reading's statement that "is of minor consequence" and does not impact the decision.96 In the circumstances, I also agree with Chief Superintendent Reading's conclusion that Ms Rutherford's complaint process was not inadequate because she assessed Officer Shuker's "credibility when responding to this issue", viewed emails confirming the family's support for QFES' arrangements, and on that basis then decided not to contact retired Assistant Commissioner Darryl King or the other potential staff witness, Kenton Robertson, was not unreasonable "mindful that this topic was sensitive." I agree that launching full scale inquiries into how it was decided who would give the eulogy at a funeral that took place more than a year ago at the time of Ms Rutherford's outcome advice would have been inappropriate, disproportionate and bluntly upsetting to the family if it were to have reached their ears. [135] I agree with Chief Superintendent Reading that the only criticism of the explanation provided by Ms Rutherford was her inclusion of a comment "that could be perceived as insensitive." (Though I note the comment was attributed to Officer Shuker in her original decision, not Ms Rutherford's own opinion). [136] In my view, Chief Superintendent Reading made sensible and appropriate concessions when he identified some flaws in Ms Rutherford's outcome advice. Those flaws are a mere blemish in my view – it does not render Ms Rutherford's outcome advice to be unfair and unreasonable. [137] For those reasons, I endorse Chief Superintendent Reading's conclusion with respect to Issue 7. That was fair and reasonable. 96 Chief Superintendent Reading's decision, 9. -- 35 of 48 -- 36 Issue 8 - Consideration [138] Chief Superintendent Reading's decision set out issue 8, findings and remedies, as follows:97 Issue 8 – Email dealing with Union business via the QFES email system. … My finding in relation to issue 8 Ms Rutherford, unknowingly inquired into the matters concerning the Union business emails in addressing your bullying complaint, however this was before a QIRC ruling that union business was outside the remit of QFES complaints. Ms Rutherford did so in good faith, and has since learned of the QIRC finding. Employees are permitted to utilise the QFES emails system to conduct Union business. Notwithstanding, there are no clear breaches of the Public Sector Code of Conduct within the emails considered in the review. Ms Rutherford's analysis regarding this issue was mostly attributed to the evidentiary sources, however, in the area indicated by you (regarding SO Shuker's rationale behind the vote) she has not attributed the source of her analysis. This is a minor oversight by Ms Rutherford and does not substantively impact her finding. Ms Rutherford's process and outcome which ultimately did not identify any bullying behaviour by SO Shuker towards you, was fair and reasonable in the circumstances. Remedy You are reminded of your complaint avenue with the UFUQ if you have concerns about the conduct of other union members engaged in union business.98 [139] Officer Davey submitted that was not fair and reasonable because99 it was not the QIRC that said QFES should not have investigated this matter and behaviour at a union meeting that may be perceived as "bullying" may escalate into physical altercation. Officer Davey highlighted sections of Chief Superintendent Reading's decision regarding Ms Rutherford's inquiry into union business; attempt to consult Union Rules; decision to prefer Officer Shuker's evidence over Officer Davey's; and his conclusion that constituted a "minor oversight by Ms Rutherford and does not substantively impact her finding." [140] The Respondent submissions noted that Chief Superintendent Reading's decision did identify some flaws in Ms Rutherford's outcome advice and appropriate remedies were provided, though that did not disturb his internal review conclusion that the outcome advice was fair and reasonable. That was noted in Chief Superintendent Reading's decision at Issue 7 and Issue 8. 97 27 June 2024 Decision. 98 Ibid 10-11. 99 Appellant's submissions filed 25 October 2024, 13-15. -- 36 of 48 -- 37 Issue 8 - Findings [141] With respect to "Emails dealing with Union business via the QFES email system",100 Ms Rutherford "included this concern as part of [Officer Davey's] complaint and addressed it in her decision."101 [142] I endorse Chief Superintendent Reading's analysis of this issue (emphasis added):102 QFES allows use of its corporate email system by union officials and members to conduct union business… … Overall, the union emails indicate a robust discussion occurred between a small number of people, including you, SO Barry Thompson, SO Shuker and SO Peter Guley, with a large number of union members copied into each email. The content of these union emails does not appear to breach the Public Service Code of Conduct. They do not contain coarse language, discriminatory terms; or inappropriate images or any content that is obviously disrespectful (opposing views and perspectives are communicated, but essentially the tone is respectful in nature). It is out of scope for QFES to apply the UFUQ Union Rules to review union processes utilised by SO Shuker and his counterparts in the emails to determine whether SO Shuker's actions in asking questions and raising issues were instigated properly… … Ms Rutherford appears to have unknowingly inquired into the business of the Rockhampton UFUQ branch and addressing behaviours without delineating its relevance to QFES workforce conduct standards. [143] I accept Chief Superintendent Reading's finding that "Ms Rutherford's process and outcome…did not identify any bullying behaviour by SO Shuker towards [Officer Davey]..." and that Officer Davey was "reminded of your complaint avenue with UFUQ if you have concerns about the conduct of other union members engaged in union business." [144] In my view, Chief Superintendent Reading made sensible and appropriate concessions when he identified some flaws in Ms Rutherford's outcome advice. Those flaws are a mere blemish in my view – it does not render Ms Rutherford's outcome advice to be unfair and unreasonable. [145] For those reasons, I endorse Chief Superintendent Reading's conclusion with respect to Issue 8. That was fair and reasonable. 100 This was "CMS 1-1520 matter, (2)(D)" in Ms Rutherford's decision and "Issue 8" in Chief Superintendent Reading's decision. 101 Chief Superintendent Reading's decision, 10. 102 Ibid 10-11. -- 37 of 48 -- 38 Issue 9 - Consideration [146] Chief Superintendent Reading's decision set out issue 9, findings and remedies, as follows:103 Issue 9 – You were not consulted prior to Ms Rutherford making her findings. … My finding in relation to issue 9 After engaging with you during the complaint process, there was no requirement for Ms Rutherford to consult you again prior to making a finding in her decision dated 12 August 2022. Remedy No further action.104 [147] Officer Davey's submissions on this point were limited to highlighting the following section of Chief Superintendent Reading's decision:105 In forming conclusions about a complaint matter, it is usual for a decision maker to seek the input of both parties (the complainant and subject officer) as well as any other relevant witnesses accounts, which did occur during Ms Rutherford's complaint process. [148] The Respondent's submissions asserted that Chief Superintendent Reading's decision was fair and reasonable, in reliance on the analysis and reasoning contained therein. Issue 9 - Findings [149] Chief Superintendent Reading's decision contained clear and sound explanation of procedural fairness requirements, and the process steps taken to fulfil these obligations. Chief Superintendent Reading described the evidence demonstrating how and when Officer Davey was consulted by Ms Rutherford during the process. I am satisfied that Officer Davey was provided with a fair opportunity to be heard via the initial meeting with Ms Rutherford, "at least one phone call and a Teams meeting", and Ms Rutherford's compilation of "70 pages of documents that you provided to her to consider". [150] Officer Davey's complaint that not all witnesses were interviewed by Ms Rutherford has been earlier addressed in this Decision. (That is, some witnesses sought anonymity, it was not necessary to interview Brad Boyes, it was not appropriate in the circumstances to interview retired Assistant Commissioner Darryl King, Acting Assistant Commissioner Steve Smith was interviewed,106 etcetera). [151] I support Chief Superintendent Reading's explanation that: 103 27 June 2024 Decision. 104 Ibid 11-12. 105 Appellant's submissions filed 25 October 2024, 15-16. 106 Ms Rutherford outcome advice dated 12 August 2022, 2. -- 38 of 48 -- 39 Unless the decision maker felt it necessary to clarify the complainant's evidence against a particular response given by the subject officer, it is not normal practice to consult with the complainant at the point of making a final decision on the matter. There was no requirement for Ms Rutherford to go back to you and test her findings with you prior to finalising her decision.107 [152] I have reviewed Directive 11/20 Individual Employee Grievances, specifically clause 8 regarding IEG resolution principles and clause 9.1 setting out the procedures for managing and resolving IEGs at Stage 1 – local action level. The Directive does not support Officer Davey's assertion that Ms Rutherford should have consulted him again prior to making a finding in her outcome advice. [153] I endorse Chief Superintendent Reading's conclusion with respect to Issue 9. That was fair and reasonable. Issue 10 - Consideration [154] Chief Superintendent Reading's decision set out issue 10, findings and remedies, as follows:108 Issue 10 – Ms Rutherford showed bias and was not impartial, by accepting SO Shuker's version of events over yours. I believe I have addressed this concern in issue 8 above.109 [155] Officer Davey did not make any submissions on this particular issue nor did he highlight sections of Chief Superintendent Reading's decision to otherwise indicate a particular part for my attention.110 For that reason, I have not proceeded to consider Issue 10 and so it follows I have not disturbed Chief Superintendent Reading's determination that it was fair and reasonable. Further issues identified - Consideration 12 August 2022 outcome advice did not advise of internal review rights, as required [156] There is a procedural problem with the 12 August 2022 outcome advice that does not appear to have been identified in Chief Superintendent Reading's 27 June 2024 decision. [157] IEG Directive, cl 9.1(f)(iv) states that the Stage 1 – local action decision "must" "inform the employee of their internal review rights outlined in Stage 2 - internal review, including any relevant timeframes" (along with other mandatory inclusions that had been fulfilled). [158] That particular deficiency was not noted in the decision subject of this appeal. 107 Reading Decision dated 27 June 2024, 12. 108 27 June 2024 Decision. 109 Ibid 12. 110 Appellant's submissions filed 25 October 2024, 16. -- 39 of 48 -- 40 [159] The omission of a mandatory requirement is not fair and reasonable. Acceptance of additional issues by Review Officer, for consideration in 27 June 2024 decision [160] Chief Superintendent Reading stated that Officer Davey "provided the [review officer] with a timeline of events that further explains SO Shuker's pattern of behaviour, however this was not provided to Ms Rutherford and was therefore not able to be considered by her…[and further] however some of those matters were not part of your original complaint, and one occurred after the closure of the complaint."111 [161] I concur with that assessment. Ms Rutherford cannot have been expected to be aware of, or determine, complaints that were not expressly put before her. The onus is squarely on Officer Davey (as the aggrieved employee) "to submit their individual employee grievance in writing"112 and "as soon as reasonably possible after the…behaviour has occurred."113 [162] With respect to the submission of those additional matters to Ms Hull, alleged to have occurred quite some time ago, Officer Davey had not adhered to the requirements of the IEG Directive to raise those matter "as soon as reasonably possible after the…alleged behaviour has occurred."114 [163] Notwithstanding, it appears Ms Hull and Chief Superintendent Reading approached the third internal review with an abundance of fairness and caution, in giving consideration to such matters to the extent practicable and appropriate. That was fair and reasonable. Available remedies versus outcome sought [164] The Respondent submitted that (emphasis added): …there are no disciplinary actions against the Appellant and any formal and informal counselling has been retracted in accordance with the consent order of Commissioner McLennan dated 6 February 2024. …the Appellant and Station Officer Shuker's substantive positions are now at different stations in line with the recommendation of Commissioner McLennan of 6 February 2024. The Respondent understands that the Appellant is dissatisfied with the outcome of the review, however this does not mean that the decision is unfair or unreasonable. It is unclear to the Respondent what the Appellant is seeking in relation to the Applicant's appeal.115 111 27 June 2024 decision, 4. 112 IEG Directive, cl 9.1(a). 113 Ibid cl 8.1. 114 Ibid cl 8.1. 115 Respondent's submissions filed 5 November 2024, [27]-[30]. -- 40 of 48 -- 41 [165] Officer Davey replied that (emphasis added): …What I am seeking is to stop being bullied by Ian Shuker. I am seeking to stop Ian Shuker lodging repeatedly allegations in Individual Employee Grievances falsely accusing me of inappropriate conduct. I am seeking to stop Ian Shuker time and again ringing my Boss reporting what he perceives to be some slight that he feels I have perpetrated. I want to know that when my Chief Superintendent tells me...that he will stop Ian Shuker from bullying me, that it won't just stop for 8 months only to start again and continue on for years. I want to feel supported by my employer…that my concerns are treated genuinely. I want to be shown the respect to be allowed to give my side of what has occurred. That they do conduct a competent and thorough investigation and actually look at the facts and interview witnesses. That they don't just take one person's side simply because of his professed self-righteousness. I don't want to be made to feel from my employer that because I raise that I am being bullied that I then am the one having to defend myself every step of the way, as though I am the person who has done something wrong…116 [166] Officer Davey sought a 'Stage 3 – external review' of Chief Superintendent Reading's 27 June 2024 decision, electing to file a public service appeal against "a fair treatment decision."117 For such matters, the question to be decided by the Commission is whether or not the particular decision made was fair and reasonable. Clause 9.3(a)(i) of the IEG Directive describes an appeal of this type. [167] The IEG Directive explains that: "Depending on the issues raised in the grievance, the avenues for external review may include:…an application to the QIRC for a stop bullying order under…the IR Act." Further, the IEG Directive states that: "Sections 425 and 449 of the IR Act preclude an employee from lodging more than one type of application to the QIRC in relation to the same decision, conduct or behaviour, except where the matter relates to bullying in the workplace." [168] In short, there are different pathways for different matters that come to the Commission. The decision criteria that needs to be satisfied in order to 'prove' (on the balance of probabilities) one's case is contained in different legislative provisions, depending on the type of complaint. [169] In this case, Officer Davey decided to file a public sector appeal against "a fair treatment decision"118 – the decision being the one made by Chief Superintendent Reading on 27 June 2024. That means the question to be answered by me is whether or not that decision was fair and reasonable. 116 Appellant's reply submissions filed 12 November 2024, 1. 117 Appeal Notice filed 9 March 2023, 3. 118 Ibid 3. -- 41 of 48 -- 42 [170] Officer Davey did not also file an application for a stop bullying order. So such order is not an available remedy here. [171] However, I am mindful of the need to: • "provide for the just and expeditious disposition of the business of…the commission…at a minimum of expense"119; and • perform the functions of the commission in a way that "avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings" [172] In light of that, I will provide an overview of the workplace bullying criteria and make some comments on it relevant to this case. Workplace bullying [173] Officer Davey's appeal correspondence120 includes assertions he has been subjected to workplace bullying by Officer Shuker. [174] The Respondent submitted that Chief Superintendent Reading gave consideration to whether matters raised by Officer Davey met the definition of bullying and "determined, that because Ms Rutherford had not identified repeated unreasonable behaviour, the definition of bullying could not be met."121 [175] Chapter 7 of the IR Act contains provisions relevant to employees bullied in the workplace. [176] Pursuant to s 272 of the IR Act, an employee is "bullied in the workplace" if the following criteria is met: • the behaviour happens "while the employee is at work";122 • the behaviour is "repeated";123 • the behaviour is "unreasonable";124 and • the "behaviour creates a risk to the health and safety of the employee".125 119 Industrial Relations (Tribunals) Rules 2011 r 6. 120 Email from Officer Davey dated 24 October 2024. 121 Respondent's submissions dated 5 November 2024, [17]. 122 Industrial Relations Act 2016 (Qld) s 272(1)(a). 123 Ibid. 124 Ibid. 125 Ibid s 272(1)(b). -- 42 of 48 -- 43 [177] If all those tests are satisfied, an employee can apply to the Commission for an "order to stop bullying".126 (As earlier noted, such application was not filed in this case). [178] The Commission may make an order to stop bullying127 if: such an application is made;128 the s 272 tests are satisfied;129 and "there is a risk that the employee will continue to be bullied in the workplace."130 [179] Here, some of the conduct complained about by Officer Davey did occur "at work"131 - such as the rostering conflict, Yogolicious inquiry, failure to engage FESSN, arrangements for Blair Grice's funeral, and mass emails regarding local union matters. However, some of the conduct did not occur "at work", specifically happenings at the local union meeting held on the evening of 14 December 2021 – which is out of scope of this Decision. [180] The next issue then is whether any of Officer Shuker's conduct (complained about by Officer Davey, and considered by Ms Rutherford) was "unreasonable."132 If any such conduct is found to be "unreasonable", the consideration goes to whether there was more than one incident of "unreasonable" conduct. If so, then the test of "repeated" behaviour would be met.133 I agree with Chief Superintendent Reading's assessment that (emphasis added): You made an Individual Employee Grievance in writing as per the Directive requirement to do so. The grievance stated an allegation of bullying of many years, and to support this, you provided three examples that the bullying was 'in the form of'. … …Ms Rutherford's methodology exploring each incident and coming to a conclusion as to whether each incident was reasonable or unreasonable, was a fair approach. … Ms Rutherford's complaint process took a reasonable and fair approach to the complaint issues that you identified at the time, by exploring the reasonableness of each occasion where you had a negative interaction with SO Shuker. It is noted that you had provided a timeline of events to the RO, however some of those matters were not part of your original complaint, and one occurred after the closure of the complaint. … [181] Of the conduct complained about by Officer Davey that did occur "at work", I agree with Ms Rutherford's original assessment - and Chief Superintendent Reading's third internal review confirmation - that Officer Shuker did not act "unreasonably". (My reasons are 126 Ibid s 273. 127 Ibid s 275. 128 Ibid s 275(1)(a). 129 Ibid s 275(1)(b)(i). 130 Ibid s 275(1)(b)(ii). 131 Ibid s 272(1)(a). 132 Ibid. 133 Ibid. -- 43 of 48 -- 44 explained above, as part of the examination of each issue Officer Davey contended to be deficient or unreasonable134 in the complaint process managed by Ms Rutherford). [182] My support for the finding that Officer Shuker had not acted "unreasonably" means that the legislative test requirement for such behaviour to be also "repeated" is not met either. That is, if Officer Shuker did not act "unreasonably" once, then it follows that "unreasonable behaviour" was not then "repeated". [183] Officer Davey's assertions that Officer Shuker "bullied" him cannot succeed because the legislative tests for behaviour to be "repeated" and "unreasonable" are not made out.135 That means that the consideration of the decision criteria for workplace bullying under the IR Act ends there. There is no need to go on to examine whether the last requirement is met – that is, that the "behaviour creates a risk to the health and safety of the employee".136 [184] However, Chief Superintendent Reading's decision acknowledged Officer Davey's "…email to the [review officer] dated 23 June 2024, whereby you express the personal and professional impacts of the drawn-out processes that have occurred."137 There is no need to record the symptoms and impact Officer Davey stated the experience has had upon him here. The Respondent submission also recognised Officer Davey's "claim of the significant impact this matter has had on [his] mental and physical health."138 [185] While I have endorsed Chief Superintendent Reading's decision, and found Officer Davey was not "bullied" to begin with – neither is it the case that Officer Davey "will continue to be bullied in the workplace,"139 in circumstances where Officer Davey and Officer Shuker's substantive positions are now at different stations in line with my recommendation of 6 February 2024.140 Separating the pair would appear to mitigate any such risk, meaning a 'stop bullying' order would be unlikely to succeed – even if an application were to be made and even if the s 272 tests were to be satisfied. [186] Although I have supported Chief Superintendent Reading's decision that Officer Shuker's behaviour was not unreasonable, it has clearly had a significant impact on Officer Davey nonetheless. In his reply submissions, Officer Davey wrote: …I am seeking to stop Ian Shuker lodging repeatedly allegations in Individual Employee Grievances falsely accusing me of inappropriate conduct. 134 "These were the matters [Officer Davey] identified (in your Request for Internal Review form dated 25 August 2022 and in discussions with the RO)…"; Chief Superintendent Reading's decision 3. 135 Industrial Relations Act 2016 (Qld) s 272(1)(a). 136 Ibid s 272(1)(b). 137 27 June 2024 Decision, 4. 138 Respondent's submissions filed 5 November 2024, [26]. 139 Industrial Relations Act 2016 (Qld) s 275(1)(b)(ii). 140 Respondent's submissions filed 5 November 2024, [27]-[30]. -- 44 of 48 -- 45 I am seeking to stop Ian Shuker time and again ringing my Boss reporting what he perceives to be some slight that he feels I have perpetrated…141 [187] Three things flow from those remarks. Firstly, I am unaware of whether or not Officer Shuker has continued to raise IEGs or make allegations about Officer Davey, given that the two men are now located in different centres. I would have assumed not, given Officer Shuker's knowledge of, or involvement in, Officer Davey's day-to-day work would presumably be very limited. If so, implementing separate work locations has provided a solution. Secondly, there is no requirement that the employer put each and every allegation made to an employee. Some that are deemed trivial need not be put. Others may be examined through other means and dismissed. It may be determined that an informal approach, a quiet word, is the appropriate way to remind of expectations. Another option may be to address matters by way of advice or training for staff more generally. The employer has such discretion to assess complaints, and decide which to progress, through various mechanisms, including but not limited to the IEG Directive. Thirdly, this is a published decision that Officer Shuker will no doubt become aware of and read. The apparent conflict and sparring between the pair must stop. Though the Code of Conduct requires employees to raise genuine concerns, wisdom and collegiality are required to best discern in the future what matters need be aired - and how. [188] As earlier observed, an order to stop bullying is not available to Officer Davey through the pathway of a public sector appeal. [189] Further, my consideration of the threshold to be met for bullying under the IR Act shows that has not been fulfilled in the circumstances. Officer Davey's persistent calls for re-investigating his complaints against Officer Shuker [190] Although Officer Davey continues to seek that QFES "conduct a competent and thorough investigation and actually look at the facts and interview witnesses", my email142 to the parties clearly stated that "…QFES's task was to 'review the decision' as 'an internal review of a process and decision', and not 're-investigate' his complaint in entirety". [191] In filing this appeal, Officer Davey complained that the third internal review decision did not contain "any evidence to support the broad and general statements" and that none of his witnesses "who verify what is true and reflect the failure of Ms Rutherford's investigation, were contacted".143 [192] I appreciate Officer Davey wants a new investigation into his many complaints against Officer Shuker, with witnesses interviewed afresh. That will not happen. Even if it 141 Appellant's Reply Submissions filed 12 November 2024, 1. 142 17 October 2024. 143 Appellant's submissions filed 24 October 2024, 1. -- 45 of 48 -- 46 could, so much time has now elapsed since the events complained of that the recollections of witnesses are even less likely to be reliable at this point. Continued complaints about the local union meeting [193] It seems that Officer Davey continues to resist hearing that the various complaints regarding happenings at the local union meeting are not part of this appeal. [194] That was settled in the consent order issued on 6 February 2024. Yet even in Officer Davey's final submissions, he continues to agitate that line of inquiry. [195] No disciplinary action - or even management action - formal or informal, will be taken against Officer Davey with respect to the CMS 1-1639 complaints made by Officers Shuker and Blanchfield. QFES' involvement in that matter is closed. [196] I endorse the observation of Chief Superintendent Reading that Officer Davey is "reminded of your complaint avenue with the UFUQ if you have concerns about the conduct of other union members engaged in union business".144 Notwithstanding that, the reality is that several years have now elapsed since that particular local union meeting. Even if Officer Davey asked the UFUQ to consider his complaints via the union's internal processes, the recording of the union meeting so often referred to by Officer Davey would not comprise the totality of relevant evidence (as non-verbal gesticulating for example, that may have been perceived as aggressive, would not be captured in any audio recording). Impact on Officer Davey by time taken to conclude this matter [197] Chief Superintendent Reading's decision acknowledged Officer Davey's "…email to the [review officer] dated 23 June 2024, whereby you express the personal and professional impacts of the drawn-out processes that have occurred."145 [198] The Respondent submission also recognised Officer Davey's "claim of the significant impact this matter has had on [his] mental and physical health."146 [199] I have earlier noted that this public sector appeal is unusual, in terms of both timeframes and complexity. Both parties sought extensions to prescribed timeframes within this process. Officer Davey exercised his right to be heard at two separate Hearings in the matter. QFES failed to conduct an internal review as directed, causing further delays. 144 27 June 2024 Decision, 11. 145 Ibid 4. 146 Respondent's submissions filed 5 November 2024, [26]. -- 46 of 48 -- 47 [200] The result was an elongated process. However, in these particular circumstances, that was required to narrow the matters in dispute – and also to ensure both parties were provided proper opportunity to be heard, before a decision was made. [201] The chronology at [22]-[53] of this Decision detailed the various steps taken in resolution of the matter, culminating in my decision on this appeal. Opportunity for Officer Davey to "give my side of what has occurred" [202] With respect to the chronology recounted above, Officer Davey cannot reasonably complain that he has not been "allowed to give my side of what has occurred". The issues have been very well ventilated – exhaustively, perhaps - throughout the many phases and iterations of this particular appeal. [203] Both parties have been provided several opportunities to correct issues. That has resulted in vastly narrowing the matters in dispute. [204] That includes the resolution of all complaints made against Officer Davey in his favour, with the conversion of findings on each allegation against him now determined to be "not substantiated". Further, all formal, or informal, actions against Officer Davey have also been removed as a result. That outcome is not insignificant. Was the Third Internal Review Decision Fair and Reasonable? [205] Section 562B of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable". [206] The appeal is not conducted by way of re-hearing but involves a review of the decision arrived at by the Respondent and the associated decision-making process. [207] Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal. [208] I have reviewed all of the material provided by both Officer Davey and the Respondent. [209] This Appeal requires me to specifically focus on the third internal review decision. [210] For the forgoing reasons, I have determined that: • Chief Superintendent Reading's decision was fair and reasonable, with respect to Issues 1, 3, 4, 5, 6, 7, 8, 9 and 10. • Chief Superintendent Reading's decision was not fair and reasonable, with respect to Issue 2. -- 47 of 48 -- 48 • Ms Rutherford's outcome advice did not advise Officer Davey of his internal review rights, pursuant to IEG Directive, cl 9.1(f)(iv). That omission was not fair and reasonable. [211] I order accordingly. Orders Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): 1. Chief Superintendent Reading's decision dated 27 June 2024, is set aside and another decision is substituted: (a) Chief Superintendent Reading's decision was not fair and reasonable, with respect to Issue 2. It was not fair and reasonable for Ms Rutherford to have included reference to complaints 1-499 and 1-500, that were subject to a review by the Commission; (b) Chief Superintendent Reading's decision with respect to Issues 1, 3, 4, 5, 6, 7, 8, 9 and 10 was fair and reasonable. -- 48 of 48 --