Burrows v State of Queensland (Queensland Fire and Emergency Services) [2025] QIRC 18

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Burrows v State of Queensland (Queensland Fire and Emergency Services) [2025] QIRC 018 PARTIES: Burrows, Matthew John (Appellant) v State of Queensland (Queensland Fire and Emergency Services) (Respondent) CASE NO.: PSA/2024/62 PROCEEDING: Public Sector Appeal – Fair Treatment Decision DELIVERED ON: 22 January 2025 MEMBER: HEARD AT: Power IC On the papers ORDERS: 1. The review decision is confirmed. 2. The appeal is dismissed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against fair treatment decision – where appellant received rental subsidy – where appellant vacated premises prematurely – where appellant continued to receive rental subsidy – where appellant directed to reimburse overpayment of rental subsidy – whether decision was fair and reasonable – decision confirmed. LEGISLATION AND OTHER INSTRUMENTS: Industrial Relations Act 2016 (Qld), s 562B, s 562C Public Sector Act 2022 (Qld), s 131 -- 1 of 10 -- 2 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland [2018] QSC 319 Reasons for Decision Introduction [1] Mr John Matthew Burrows ('the Appellant') is employed by the State of Queensland (Queensland Fire and Emergency Services) ('the Respondent') as an Emergency Management Coordinator at Longreach within the Readiness and Response Services Unit of the Queensland Fire and Emergency Services. [2] On 2 November 2022, the Appellant entered into a tenancy with private Landlords. The Respondent was not a party to the Tenancy Agreement and does not own the property. The Appellant agreed to pay the Landlords rent of $460.00 per week in fortnightly instalments for the period of the lease, that being 20 December 2022 to 19 December 2023. [3] On 19 December 2022, Mr Mike Wassing, Deputy Commissioner, Queensland Fire and Emergency Services ('QFES'), approved the Appellant's application for a rental subsidy amount of $345.00 per week to be paid to the Appellant each fortnight ('the Subsidy'). [4] The Respondent subsequently became aware of allegations that the Appellant had moved out of the Property during the period of the lease and had received the Subsidy for periods over which he had not paid rent. [5] In February 2024, the QFES Conduct and Investigations Unit ('CIU') produced a report documenting its finding that, on the balance of probabilities, Allegation 1 was capable of being substantiated. Allegation 1, is outlined follows: Allegation 1: On 25 August 2023, [the Appellant] moved out of [his] private lease accommodation in Longreach leaving it four weeks in arrears while [he] had been receiving a Residential Accommodation Subsidy payment from QFES. [6] On 13 March 2024, Acting Deputy Commissioner Kevin Walsh wrote to the Appellant to inform him of the QFES CIU's findings. The Appellant was directed to make arrangements to reimburse the amount of $1,527.85 to QFES on the basis that he had been overpaid that amount. [7] The Appellant filed a Notice of Appeal pursuant to s 131(1)(d) of the PS Act appealing the review decision on the basis that it was not fair and reasonable. -- 2 of 10 -- 3 Appeal principles [8] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under ch 11 pt 6 div 4 of the IR Act is not by way of rehearing,3 but involves a review of the decision arrived at and the decision-making process associated therewith. [9] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination in this matter is whether the decision by the Respondent of 13 March 2024 was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. What decisions can the Industrial Commissioner make? [10] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and substitute another decision; or (c) set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Grounds of appeal [11] The Appellant's grounds for appeal as stated in the appeal notice are outlined as follows: My appeal is in relation to Allegation 1 relating to me vacating private lease accommodation whilst still receiving the Residential Accommodation Subsidy payment from Queensland Fire and Emergency Services (QFES) allegedly leaving the property 6 weeks in arrears. … My appeal is not in relation to the substantiation of the allegation, I admit that there was an overpayment and a simple conversation with my manager would've resolved the matter much more swiftly without breach my privacy and human rights as well as severely affecting my mental health and career reputation. I am appealing the monetary amount of $1,527.85 or 4.3 weeks that has alleged [sic] been overpaid to me. … 1 Industrial Relations Act 2016 (Qld), s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10. 3 Goodall v State of Queensland [2018] QSC 319. 4 IR Act, s 562B(3). -- 3 of 10 -- 4 Submissions [12] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below. Appellant's submissions [13] The Appellant's submissions are summarised as follows: (a) On 14 March 2024, the Appellant received an outcome letter from the decision maker in relation to an investigation into allegations against the Appellant regarding possible corrupt conduct related to the QFES Residential Subsidy. One of the two allegations was substantiated on the balance of probabilities, and the letter stated that the Appellant was to pay back $1,527.85 relating to an overpayment of the QFES Residential Accommodation Subsidy. (b) The Appellant was provided with a copy of the CIU Investigation Report ('the Report') compiled by QFES CIU on 28 March 2024. Within the Report, it appears that Ms Ivy Cruice, QFES Acting Principal Investigation, received advice from other QFES units. This includes Human Resources (HR) as on 10 January 2024 Ms Nicole Lee, QFES Executive Manager, HR Services notified Ms Cruice that "In short I don't think his subsidy payments pre fortnight ending 15/1/23 are correct." (c) Using payroll records, Ms Lee corrected a table compiled by Ms Cruice relating to rental payments. Ms Lee identified that QFES had paid 34 weeks of rental payments. During this time, QFES HR made an undertaking to audit the Appellant's residential accommodation Subsidy and identified various underpayments. While this was back paid as soon as possible, there was no explanation or investigation as to how this occurred unlike the investigative process that the Appellant had to endure, and the process's effect on his career, mental and physical health. (d) There was an issue with the automatic transfers from the Appellant's transaction account to the Landlords' account. This was identified by the Landlords' solicitor prior to the QFES intervention. The Appellant entered into an agreement to surrender two weeks of the bond to address the rental arrears. (e) The Appellant communicated this agreement to Ms Cruice during an interview, but further documentation relating to this arrangement was not requested, nor was the arrangement mentioned in the QFES Investigation -- 4 of 10 -- 5 Report. (f) The Appellant believed that the surrendering of the two weeks bond for the purpose of rental payments would address the rental arrears and not generate any overpayment. The Appellant submits that within the QFES PR3087 Rural and Remote Incentives or Executive Briefing note submitted to Deputy Commissioner Mike Wassing, there is no item detailing that bond payments used to address rental payments would be disqualified from the incentives scheme. (g) The Appellant is seeking to have the amount repayable to QFES reduced from $1,527.85 to one week's rental Subsidy of $345.00. The Appellant submits that QFES is currently reviewing the entire QFES Rural and Remote Incentives Scheme, and there is an independent inquiry into the management of the QFES complaints management and investigative process. Respondent's submissions [14] The Respondent's submissions are summarised as follows: (a) The Respondent submits that the decision is fair and reasonable as the Appellant is not entitled to the $1,527.85 under the Procedure or otherwise. Given that the monies have been paid from the public purse, the Respondent argues that it is fair and reasonable that they be repaid. (b) The Respondent made submissions as to how the amount of $1,527.85 was calculated. (c) The Respondent submits that the Appellant does not contest that Allegation 1 is capable of being substantiated and admits that there has been an overpayment. (d) The Respondent further submits that the basis for this Appeal, as set out in the Appellant's submissions, appears to be that the decision is unreasonable because: (i) The Appellant paid rent to the Landlords for 15 fortnights and one (1) week (being 31 weeks); and (ii) QFES paid the Appellant the Subsidy for 17 fortnights (being 34 weeks); (iii) There is therefore only three (3) weeks of rent owed by the Appellant to the Landlords (being 34 weeks minus 31 weeks); (iv) The Appellant has reached an agreement with the Landlords that the Bond will be used to satisfy two (2) weeks of the outstanding rent, and the Subsidy should apply to these payments; and (v) The Appellant owes one (1) week of rent to the Landlords, meaning -- 5 of 10 -- 6 that the Respondent overpaid him $345.00 or one (1) week of Subsidy (being $690.00 divided by two (2) weeks) ('the Alleged Overpayment'). (e) The Respondent further submits that the Appellant has misinterpreted the table at Annexure 18 by calculating that the Respondent paid the Subsidy to the Appellant for 17 fortnights (34 weeks). It appears that this oversight resulted from the Appellant relying on the numbers in the left-hand column of the table in Annexure 18 and failing to identify that the rental period in the row marked '3' is for the period from 3 January 2023 to 10 January 2023 being a 7-day period and not a 14-day period. This is not a fortnight, and the inclusion of a number '2' in the first column is in error. (f) The Respondent submits that QFES paid the Subsidy to the Appellant for 18 fortnights and not 17 as submitted by the Appellant. As such, it was open to the decision maker to issue the Decision based on the available evidence. (g) The Respondent submits that the Appellant is further arguing that the two weeks of overpayment should be foregone as he reached an agreement with the Landlords to use the Bond in relation to two weeks of outstanding rent. (h) The Respondent submits that the Appellant relies on correspondence between the solicitors for the Landlords and himself in support of his claim. In relation to this correspondence, the Respondent states: (i) this Appeal is the first time the Respondent has been provided with this correspondence. The decision maker was not aware of this correspondence when issuing the decision. The Respondent submits that the correct course of action was for the Appellant to raise this correspondence internally with the Respondent in the first instance, rather than arguing the decision was not fair and reasonable at the time it was made, due to communications not in the possession of the decision maker; (ii) notwithstanding the above, for the purposes of assisting the Commission in this Appeal, the Respondent submits that the Appellant's submission in relation to the surrendering of the Bond to the Landlords does not counter out the Overpayment; (iii) despite the Appellant's submission, it is not clear that there is an agreement for the Bond to be surrendered specifically in relation to two weeks' unpaid rent. This is not explicitly stated in the correspondence provided by the Appellant; (iv) the Appellant, in his interview with the CIU stated that he did not agree with the Landlords' characterisation of him being in arrears. It is therefore not clear if the Bond is to be surrendered, what it will be used to cover, and if it will be simply two weeks' rent in arrears as alleged by the Appellant; (v) the Landlords' solicitor notes several issues relating to the tenancy (such as unpaid rent, failure to give notice, and damage -- 6 of 10 -- 7 and repairs to the property). The email dated 28 September 2023 from Jacen Carpenter states that the Landlords reserve their rights to recover the outstanding rent and damage through the Bond/and or the Queensland Civil Administrative Tribunal ('QCAT'); (vi) the Respondent is not a party to the Lease Agreement. It has no way of knowing if the Bond will be returned or withheld by the Rental Tenancy Authority ('the RTA'). Noting the potential liabilities of the Appellant to the Landlords as set out above, the Respondent has no way of knowing that the Bond will be used to explicitly cover rent for the Period Without Rental Payment or for another purpose (such as the damage to the Property, notice under the Tenancy Agreement, or the remaining rent up until 19 December 2023); and (vii) as at 2 February 2024, it appears that the Appellant is still in dispute with the Landlords in relation to the payment of notice. (i) The Respondent submits that any dispute between the Appellant and the Landlords, including whether the Bond is to be returned, is an issue between those parties. The Respondent should be able to finalise its affairs with the Appellant in relation to the Overpayment without having to wait for the RTA or QCAT proceedings to determine if the Appellant has paid his rental arrears. (j) The Respondent submits that the Appellant should not apply the Subsidy in relation to the Bond, regardless of whether it is used to satisfy part of the rental arrears or otherwise as: (i) the Respondent is not a party to the agreement reached between the Appellant and the Landlords' solicitors as to the allocation of the Bond and is therefore not bound by its terms. Nor is the Respondent privy to what the Bond covers if not released. The Respondent is not aware of whether the Appellant's dispute has been resolved with the Landlords; (ii) the language in the Incentive addresses rental amounts only and does not extend to rental bond payments, irrespective of their use; and (iii) the Overpayment concerns public funds which are intended to be used to assist employees who are working in rural and remote areas with rental payments and not with assisting the Appellant to satisfy his separate contractual obligations to the Landlords. (k) The Respondent has a policy in force which deals with Overpayments. The Respondent has acted in accordance with the Policy when issuing the decision. (l) The Respondent has legal obligations to ensure public monies are spent in a financially sound manner, including taking all reasonable steps under the Policy to recover Overpayments. -- 7 of 10 -- 8 (m) In light of the above, the Respondent submits that the decision is fair and reasonable as the Appellant is not entitled to retain the Overpayment. It is in the public interest that public sector employees repay monies for which they are not legally entitled. Appellant's submissions in reply [15] The Appellant elected not to file submissions in reply. Consideration [16] The decision under appeal is that of Mr Kevin Walsh ('the decision maker') in which an allegation was substantiated, and management actions were determined. [17] This decision substantiated the following allegation - On 25 August 2023, [the Appellant] moved out of [his] private lease accommodation in Longreach leaving it four weeks in arrears while [he] had been receiving a Residential Accommodation Subsidy payment from QFES. [18] The decision maker determined that a disciplinary process should not be commenced and that management action in the form of counselling is appropriate in the matter. The decision also directed that the Appellant is to make arrangements to repay to QFES the amount of $1,527.85 paid by QFES for the period 26 July to 27 August 2024. [19] The Appellant states that he does not appeal the substantiation of the allegation and admits that there was an overpayment of rental Subsidy. The Appellant disputes the amount of the overpayment and consequently the amount ordered to be repaid to QFES. [20] In the Appeal Notice, the Appellant states that rather than repay 4.3 weeks of rental Subsidy, he should only be liable for one week of rental Subsidy. [21] The Appeal Notice also refers to underpayment of rental Subsidy throughout the Appellant's tenure in Longreach, however, this is not pressed as part of the appeal. [22] The Appellant submits that he paid rent for 15 fortnights and one week (being 31 weeks) and QFES paid the Appellant the Subsidy for 17 fortnights (being 34 weeks). The Appellant contends that consequently there is only three weeks of rent owed by the Appellant to the Landlords. [23] The Appellant submits that he reached an agreement with the Landlords that the Bond will be used to satisfy two weeks of the outstanding rent, and the Subsidy should apply to these payments. In these circumstances, the Appellant asserts that one week of rent is owed to the Landlords meaning that QFES overpaid him only one week of Subsidy. -- 8 of 10 -- 9 [24] The Respondent submits that the Appellant has misinterpreted the table at Annexure 18 of the Investigation Report by calculating that the Subsidy was paid for 17 weeks rather than 18 weeks. The Respondent considers that the Appellant has miscalculated after failing to identify that the rental period from 3 January to 10 January 2023 is a 7-day period rather than a 14-day period. The Appellant did not file submissions in reply to dispute this assertion, and as the documentary evidence does not suggest otherwise, it is accepted that the Respondent paid the Subsidy to the Appellant for 18 weeks. [25] The Appellant submits that he was entitled to receive the Subsidy for a two-week period on the basis that the Bond was used to satisfy the outstanding rent. The Respondent contends that the surrendering of the Bond to the Landlords does not counter out the overpayment. [26] The Appellant submitted correspondence between the solicitors for the Landlords and himself in support of his claim. The correspondence from the solicitors outlined a number of issues relating to the Appellant's tenancy including unpaid rent, failure to give notice, and damage to the property. [27] The Respondent contends that as it is not party to the lease agreement, it has no way of knowing if the Bond will be returned of withheld by the RTA. Nor has it anyway of knowing that the Bond will be used to explicitly cover the rent for the period or for another purpose. This determination was reasonably open to the Respondent based on the information before it. [28] The Subsidy was paid for the purpose of contributing towards the Appellant's payment of rent, however, he was not paying rent at that time. In these circumstances, it was fair and reasonable for the Respondent to determine that the Appellant was not entitled to the Subsidy during this period. [29] In regard to the operation of the Rural and Remote Incentives Procedure, the Respondent correctly asserts that this document outlines the subsidies for rental amounts only and does not extend to bond payments. The difficulty for the Appellant is that there is no evidence that the Bond was used for outstanding rent and therefore no evidence that the Bond payment was eligible for a Subsidy. In circumstances where the Bond could well have been applied to other matters relating to the tenancy rather than rent, an entitlement to the Subsidy does not arise. [30] It was open to the Respondent to determine that payments of public funds are intended to assist employees working in rural areas with rental payments, and not to assist the Appellant to satisfy his separate contractual obligations to the Landlords. [31] It is accepted that the Respondent has acted in accordance with the procedure outlined in R3069 – Recovery of overpayments. -- 9 of 10 -- 10 [32] It was fair and reasonable for the decision maker to determine to use management action rather than disciplinary action to resolve this matter. [33] The decision maker considered the potential limitation on the Appellant's human rights and determined that any limitation of the rights to take part in public life and right to privacy and reputation was justified because of the nature of the substantiated allegation and the requirement for QFES to comply with the PS Act by responding to concerns related to conduct. This was a fair and reasonable determination. [34] In circumstances where the Appellant has received a Subsidy for 4 weeks for which he was not entitled, it was fair and reasonable to the Respondent to take management action to recover the overpayment of $1,527.85. Order [35] I make the following orders: 1. The review decision is confirmed. 2. The appeal is dismissed. -- 10 of 10 --