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

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION PARTIES:	Rotar v State of Queensland (Queensland Fire and Emergency Services) [2023] QIRC 336 Rotar, Silvius (‘Micky’) (Appellant) v State of Queensland (Queensland Fire and Emergency Services) (Respondent)
CASE NO:	PSA/2023/179
PROCEEDING:	Public Sector Appeal – Appeal against a fair treatment decision
DELIVERED ON:	24 November 2023
HEARD AT: MEMBER:	On the papers Pidgeon IC
ORDERS:	*1. That pursuant to the Industrial Relations Act 2016* (Qld) s 562C(1)(c): (a) The matter is returned to the decision-maker with a copy of these reasons for decision; and (b) The decision letter is to be reissued to Mr Rotar attaching or including information reflective of that contained in Section 7 of the internal review report.**
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY –PUBLIC SECTOR APPEAL – where the appellant appeals an internal review decision – where the appellant complains of bullying and harassment by his supervisor – decision fair and reasonable – the decision does not contain sufficient detail as required by the Acts Interpretation Act 1954 (Qld) s 27B - decision returned to decision-maker with a copy of the reasons for decision to be reissued with further information
LEGISLATION AND OTHER INSTRUMENTS:	Acts Interpretation Act 1954 (Qld) s 27B Individual employee grievances (Directive 11/20) cl 9 Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Sector Act 2022 (Qld) ss 129, 131, 133

Reasons for Decision

Introduction

Mr Silvius (Micky) Rotar (‘the Appellant’) is substantively employed by the State of Queensland (Queensland Fire and Emergency Service) (‘the Respondent’) on a full-time basis as a Curriculum Learning and Development Officer, Governance and Compliance, Learning Development and Elective Training Command, School of Fire and Emergency Services Training, at an AO6 classification. His role is based at the Queensland Combined Emergency Services Academy Training Facility at the Port of Brisbane and he was appointed to the role on 12 January 2009.
Mr Rotar appeals the internal review decision of Mr Matthew Bulow, Chief Superintendent, Director Regional Operations, Brisbane Region, dated 22 August 2023.
It is useful to begin these reasons for decision with a brief chronology of the events which preceded Mr Bulow’s internal review decision.
Mr Rotar’s initial complaint
Mr Rotar submitted a written complaint through the Queensland Fire and Emergency Services’ (‘QFES’) Complaints Management process on 6 April 2023 alleging that he had been subjected to threatening and discriminating behaviours from his supervisor, Mr Scott Banbury. In his complaint, Mr Rotar provided six examples of when he alleges the behaviours occurred.
The complaint was assessed by the QFES Complaints Assessment Team (‘CAT’) on 18 April 2023 and referred back to the QFES People Directorate for local action. Mr Rotar’s complaint was subsequently allocated to Acting Superintendent Brenden Flynn for fact finding and resolution on 24 April 2023.
While Mr Flynn had carriage of the complaint, Mr Rotar refused the Respondent’s request for an extension to finalise the complaint on 27 April 2023. In this correspondence, Mr Rotar raised concerns that Mr Flynn may have a conflict of interest and requested that his complaint be referred to an external investigator for action. Mr Flynn advised Mr Rotar that he would be continuing with the complaint on 28 April 2023.
On 4 May 2023, under circumstances where Mr Rotar had refused an extension and would not confirm attendance at a meeting with Mr Flynn to gather additional information, Mr Flynn provided Mr Rotar with a written file note containing points he sought clarification on. Mr Rotar responded on 10 May 2023.
Mr Flynn finalised his process and completed a complaint summary on 12 May 2023. This document summarises Mr Rotar’s complaints as follows:
1. Threatening behaviour and conduct from Mr Scott Banbury by attending Mr Rotars [sic] residence on 16/03/23 to conduct welfare check and deliver correspondence.
2. Threatening, discriminating behaviour and conduct from Mr Watkins on 15/03/23 due to emailing Mr Rotar about a payroll processing request for special leave without pay for Mr Rotar:

a.Further that Mr Banbury, Mr John Pappas, Mr Stephen DePinto and Mr Jamie Cairncross failed to intervene in relation to the issues Mr Rotar raised with Mr Banbury via email, despite him copying them into his emails.

3. Instance of threatening, discriminating behaviours and conduct by Mr Banbury due to rejecting Mr Rotars [sic] timesheet for the week starting 20/03/23 citing reason as ‘fatigue management’ without instruction to [sic] from Mr Rotars [sic] medical team.
4. Instance of threatening, discriminating behaviours and conduct by Mr Banbury due to his decision to ‘fatigue manage’ Mr Rotar without providing information about his managerial powers to do so and overriding Mr Rotars [sic] treating medical team by doing so. Further this is causing Mr Rotar and his family distress & destroying his work life balance due to commuting 2.15hrs instead of 1.15hrs one way each day.

5. Instance of threatening, discriminating behaviours and conduct by Mr Banbury by discussing Mr Rotars [sic] medical information in public (at Mr Rotars [sic] desk with him, and with the accompanying officer who attended Mr Rotars [sic] property on 16/03/23). Mr Rotar alleges that Mr Banbury and others within QFES have used his disclosed and undisclosed disabilities to commit unfair treatment, breaching United Nations Human Rights, isolating and bullying Mr Rotar in the workplace and whilst on recreational leave.

6. Instance of threatening, discriminating behaviours and conduct by Mr Banbury in an email dated 28/03/23 whereby he advises Mr Rotar he will approve a timesheet for the period 13/03/2023 to 26/03/2023 that was originally declined.

That same day, Mr Flynn provided outcome advice to Mr Rotar by email. Mr Flynn’s outcome advice explained that the examples of alleged behaviour by Mr Rotar’s supervisor, Mr Banbury, did not meet the definition of ‘bullying’ or ‘harassment’ and the allegation was therefore unsubstantiated. Similarly, Mr Flynn said that he could not find examples of behaviour by Mr Banbury which could be considered a breach of Mr Rotar’s human rights. Mr Flynn said that ‘Mr Banbury acted in accordance with his duty of care obligations’ and had engaged QFES’s Injury Management and Relations and Standards branches for advice regarding the management of Mr Rotar’s return to work.
The internal review
Mr Rotar requested an internal review of the outcome of his complaint on 1 June 2023.
The internal review was allocated to Mr Simon Evans, Acting Director Relations and Standards Branch, on 5 June 2023. Mr Evans was on leave at the time and the CAT requested an extension to provide an outcome to Mr Rotar on this basis.
Due to emerging work priorities, the internal review was reallocated to Chief Superintendent Matthew Bulow on 17 July 2023.
The next day, on 18 July 2023, Mr Rotar raised concerns that Mr Bulow may be conflicted and he said he did not consent to a second extension.
On 21 July 2023, the CAT responded to Mr Rotar’s concerns about the reallocation of his internal review and sought confirmation that he wished for it to continue. Mr Rotar did not respond.
Mr Rotar filed a separate public sector appeal in the Queensland Industrial Relations Commission on 25 July 2023 prior to receiving the internal review. Following a telephone mention with another Industrial Commissioner on 9 August 2023, the parties agreed that the Respondent would provide the outcome letter to Mr Rotar within two weeks.
While Mr Rotar was on sick leave, the outcome letter was provided to Mr Rotar’s industrial representative on 23 August 2023.
Mr Rotar has since discontinued his earlier appeal and has filed this appeal on 14 September 2023.
The internal review decision

Mr Bulow begins the decision letter by acknowledging Mr Rotar’s request for an internal review regarding the management of his earlier complaint about Mr Banbury’s alleged bullying towards Mr Rotar.
Mr Bulow summarises his understanding that Mr Rotar is aggrieved by the following:
·The CAT assessment for his complaint was inappropriate in that the gravity of the allegations were unsuitable for local management action;
·Mr Flynn had a conflict of interest and demonstrated bias;

·Mr Flynn did not afford Mr Rotar procedural fairness;

·Mr Flynn failed to examine all available evidence before reaching a finding on the allegations;

·Mr Flynn did not provide sufficient information to explain his decisions about the complaint, in particular, the six incidents Mr Rotar identified as workplace bullying.

Mr Bulow confirms that the matter was reviewed by the CAT in accordance with section 9.2 of the Individual employee grievances (Directive 11/20) and outlines the process by which the internal review was ultimately allocated to Mr Flynn.
Furthermore, Mr Bulow explains that the internal review was limited to determining:
·Whether the CAT assessment decision was appropriate and consistent with assessment principles and relevant policies;
·Whether Mr Flynn had a conflict of interest and/or demonstrated bias during the complaint process;

·Whether Mr Flynn afforded Mr Rotar procedural fairness;
·Whether Mr Flynn examined all available evidence before reaching a finding on the allegations;

·Whether Mr Flynn provided Mr Rotar with sufficient information to explain his decisions about the complaint.

Mr Bulow says he read Mr Rotar’s request for the review, had regard to relevant documents relating to the complaint process, consulted with Mr Flynn regarding his management of the original complaint, considered the principles relevant to procedural fairness, conflict of interest and bias, and considered the principles of both complaint management and assessment.
Ultimately, Mr Bulow says he made the following findings:
(a)     The CAT assessment was reasonable and appropriate given the information contained in your original complaint (with the exception of the human rights assessment).
(b)     The human rights assessment of your original complaint should be revised to the extent of recognising that an aspect of the complaint did engage and limit a human right (privacy and reputation), however, noting that the limitation of the human right was reasonable in the circumstances.
(c)     The complaint process was conducted in a procedurally fair manner.
(d)     There was no evidence to indicate that Mr Flynn had demonstrated any bias during the complaint process or had a conflict of interest which would have prevented him from handling the complaint in a fair minded way.
(e)     Mr Flynn individually considered all six incidents raised by you in your original complaint, and considered whether they might amount to bullying or unreasonable management action.
(f)      The outcome advice provided by Mr Flynn to you did not provide specific information on each of the six incidents raised in your original complaint and this was unsatisfactory.
In consideration of these findings, Mr Bulow recommends the following actions:
• The CAT assessment of your original complaint be confirmed, (with the exception of the human rights assessment, as noted above).

• Mr Flynn provide updated outcome advice to you on his findings in relation to the six incidents of alleged bullying/harassment.

• That you be provided with the outcome of the internal review in writing.

Mr Bulow concludes the decision letter with information on appealing the decision and accessing QFES counselling and support.
Appeal principles

Section 562B(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
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.
A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
(a) confirm the decision appealed against; or
…
(c) For another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative Framework and Other Instruments

Section 131 of the Public Sector Act 2022 (Qld) (‘the PS Act’) lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision.
Section 129 of the PS Act relevantly states:
129 Definitions for part
…
fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.

Section 133 of the PS Act explains who may appeal a fair treatment decision:
133 Who may appeal
…
(d) for a fair treatment decision—a public sector employee aggrieved by the decision;
Directive 11/20 relevantly provides:
9. Procedures for managing and resolving individual employee grievances
…
9.2 Stage 2–internal review
(a)If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review.
(b) A request for an internal review must:
(i) be received by the chief executive within 14 days of the employee receiving a copy of the decision made through local action or a decision is taken be made under clause 9.1(e)
(ii) clearly state the reasons for dissatisfaction with the decision made through local action, and not merely state a belief that the decision made through local action was unfair and unreasonable, and
(iii) state the action the employee believes would resolve the grievance.
(c) Once an agency receives a request for an internal review, the agency must notify the employee in writing:
(i)that the request for an internal review has been received by the agency
(ii) of the name and contact information for a contact person for the internal review, and
(iii) of the 14 day timeframe for making a decision in clause 9.2(f).
(d)An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances.
(e)If the chief executive or delegate is satisfied that:

(i) the reasons for seeking an internal review are insufficient
(ii) the request for internal review is frivolous or vexatious, or
(iii)the employee has unreasonably refused to participate in local action to resolve the individual employee grievance

the agency may decide to take no further action in relation to the request for internal review. The agency must give written reasons for its decision in accordance with clause 9.2(h).
(f) A decision about internal review of a decision made through local action must be made as soon as possible and within 14 days of receipt of a written request from an employee for internal review. The 14 day period commences from the date the This applies unless:
(i) the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement or
(ii) where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance.

(g) If the chief executive or delegate fails to make a decision in relation to the request for internal review, the agency is taken to have confirmed the decision made through local action. Depending on the issues raised in the individual employee grievance, this may result in an avenue of external review being available to an employee once the 14 day period in clause 9.2(f) has expired.
(h) At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision to the employee. This decision must:
(i) outline the action taken to review the decision made through local action
(ii)outline the reasons for the decision, or the decision to take no further action
(iii) outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and
(iv) outline any avenues of external review that may be available to the employee, including any relevant timeframes.

Mr Rotar’s reasons for appeal

Mr Rotar’s reasons for appeal can be summarised as follows:
·The overall outcome decisions are unreasonable and therefore unfair.
·The decisions do not conform to requirements as stipulated within Directive 11/20.
·He has not been afforded natural justice or procedural fairness.

·The reasons for the decision do not link to material questions of facts or other material relied upon by the decision-maker to form their decision.

·The reviewer has failed in their duty as they should have considered the original level one investigation and the facts and reasoning relied upon by the original investigator.

·The level one investigator was also the decision-maker and there was no separation of the investigator role and the delegated decision-maker role. This implies that apprehended bias tainted the original decision.

·Finally, Mr Rotar is also concerned about apprehended bias in the internal review as the reviewer signed their name as the review decision-maker and did not mention if another person was the delegated decision-maker.

Respondent’s submissions

The Respondent’s submissions replicate the chronology of the matter set out above at [1]-[25].
In response to the appeal, the Respondent says that Mr Rotar has failed to provide specific information as to why he considers the internal review decision to be unfair or unreasonable.
To the contrary, the Respondent says that the internal review decision complies with cl 9.2 of the Directive and Mr Rotar has been afforded procedural fairness.
Firstly, the Respondent points out that Mr Rotar has been on sick leave since 2 August 2023. Mr Bulow completed an internal review report on 22 August 2023 which noted that Mr Bulow did not contact Mr Rotar directly throughout the internal review as Mr Rotar was on sick leave. Mr Bulow considered Mr Rotar’s written submission provided sufficient information.
In addition, the Respondent submits that Mr Rotar has received procedural fairness as his original complaint was assessed and a fact-finding process was undertaken before an outcome was provided. Mr Rotar did not take the opportunity to meet with Mr Flynn. Mr Flynn had no choice but to send his request for clarifications to Mr Rotar in writing as Mr Rotar did not consent to the Respondent’s request for an extension.
The Respondent contends that it is not normal process for a complainant to receive the opportunity to comment on information provided by witnesses or subject officers before decisions are made in relation to complaint outcomes. Rather, the decision-maker gathers facts from various sources to determine the outcome. The complainant can request an internal review if they are dissatisfied with the outcome.
The Respondent says that Mr Bulow’s internal review report and the outcome letter provided to Mr Rotar each state that Mr Bulow reviewed the documents relating to the complaint process.

Further, the Respondent says that the complaint and internal review were not allocated to formal investigation, meaning there was no requirement for a separate decision-maker. The officer delegated to review the complaint can gather facts and make both findings and recommendations. This aligns with the QFES Management Action Guide which provides guidance on how complaints should be reviewed at the local level.
In its submissions, QFES also denies that either Mr Flynn or Mr Bulow were biased or held a conflict of interest. In terms of Mr Flynn, the Respondent says that Mr Bulow’s outcome letter confirmed that he found no evidence of Mr Flynn being biased or conflicted. Further, Mr Rotar has not produced any evidence to the contrary. In terms of Mr Bulow, the Respondent says that the CAT assessed that Mr Bulow was also neither biased nor conflicted.
The Respondent’s submissions conclude by raising concern for Mr Rotar’s wellbeing as he continues to participate in his multiple appeals before the Commission while being certified as unfit for duty by his doctor.
I held a telephone mention on 12 October 2023 to address this matter where Mr Rotar’s representative confirmed that Mr Rotar had consulted with his doctor and there was no medical reason precluding Mr Rotar from participating in these proceedings.
Appellant’s submissions
Definition of bullying
Mr Rotar addresses the definition of ‘bullying’ and contends the decision-maker may not have applied the appropriate test of bullying to the matters he raised in his grievance. Mr Rotar also submits that if the decision-maker found that his complaints did not meet the definition of bullying, it was incumbent upon them to assess whether the conduct he complained of was fair, reasonable and consistent with the Code of Conduct and departmental policies.
Mr Rotar says that the decision-makers for both the grievance and the internal review decisions did not refer to any material questions of fact in their decisions nor the evidence upon which those decisions were based, for example, why each of the six examples he provided did not constitute of bullying.
The delegated decision-maker for the grievance
Mr Rotar’s original grievance sought that particular disciplinary actions be taken against the subject officer of his complaint. In the grievance decision, the delegate indicated that some of the matters Mr Rotar raised were not within his delegation. Mr Rotar says that it was unfair and unreasonable for the grievance to be handled by someone who did not have the delegation to make a disciplinary decision or refer the matter.
Further, Mr Rotar says that the internal decision did not interrogate that matter further, despite his claim of bias during the complaint process.
Mr Rotar’s argument appears to be that the appointment of a delegate who did not have action to commence a disciplinary process or suspend employees demonstrated a prejudgement of the matter and that a disciplinary avenue was closed from the start of the process.

The internal review

In addition, Mr Rotar complains that the internal review decision was too short and does not appear to refer to any evidence relied upon by the decision-maker regarding questions of fact.
Mr Rotar is dissatisfied with the parameters set for the internal review. Mr Rotar says that the internal review was arbitrary in nature and there does not appear to be any basis in legislation or an industrial instrument to limit an internal review in this way.
Moreover, Mr Rotar is concerned that the internal review does not detail whether the process complied with Directive 11/20 or departmental policy and does not address the original decision-maker’s definition of bullying and how it was applied to the evidence.
Mr Rotar also says that there is no explanation given as to why the matter was referred for local action when workplace bullying is typically a disciplinary offence.
Overall, Mr Rotar says that the lack of detail in the internal review decision renders it unfair and unreasonable.
Local management action
Mr Rotar complains that per the Management Action Guide, a formal investigation should have occurred because the alleged conduct could warrant formal disciplinary action. Therefore, Mr Rotar submits that local management action and local resolution were not suitable substitutes for a formal investigation.
Using substantive and irrelevant opinion of a co-worker to justify decision by investigator and decision-maker

Mr Rotar makes references to the local investigation undertaken by Mr Flynn. Mr Rotar is dissatisfied that Mr Flynn has relied on matters reported in an investigation interview with Mr Woolard.
Mr Rotar says that he should have been informed of adverse opinions of him provided by those interviewed in the investigation and that he should have received a right of reply.
Mr Rotar says that Mr Bulow breached Mr Rotar’s rights to natural justice and procedural fairness by not identifying Mr Woolard’s opinions and either striking them out or giving Mr Rotar an opportunity to respond.
Mr Rotar is also concerned that Mr Flynn demonstrated bias and a conflict of interest by taking directions from and conferring with Mr DePinto, who is a named person in his complaint. Mr Rotar says that this conduct was continued by Mr Bulow who should have reasonably known that it was wrong for Mr DePinto to delegate Mr Rotar’s matter given he was named in the complaint.
Mr Rotar provides a screenshot of an email where Mr DePinto forwards the complaint assessment from the CAT to Mr Flynn for action. I note that in the email message, Mr DePinto requests to be kept ‘at arm’s length if possible’.
Mr Rotar complains that Mr Flynn did not investigate whether Mr Rotar was on recreation leave at the time of the welfare check attendance at his house. Mr Rotar submits that the CAT recommended this course of action and notes that it was not done.
Mr Rotar says that the welfare check was organised when it was known that he was on approved leave. In effect, Mr Rotar says that the welfare check was a deceitful plan to cover for the delivery of a direction to undergo an independent medical examination.
Mr Rotar complains that Ms Tenthy failed to provide the necessary return-to-work medical clearance until the morning of 15 March 2023 and that he returned it on the morning of 17 March 2023.
Mr Rotar says that Ms Tenthy knew that he was returning to the workplace on 20 March 2023 and arbitrarily decided to place him on sick leave without pay for two pay cycles. Mr Rotar says that Mr Banbury and Mr Watkins should have conducted due diligence but approved the decision.
Mr Rotar also says that he takes issue with being called by Mr Banbury to an unannounced meeting at 1:15 pm on 20 March 2023, for which Mr Rotar says there was no warning, agenda or information provided to allow Mr Rotar to prepare. Mr Rotar says that Mr Banbury informed him that he had ‘arbitrarily’ decided to manage Mr Rotar’s work hours because he decided Mr Rotar had a fatigue issue and that this had an impact on his capacity to accrue time-off.
Mr Rotar says that while the internal review provided an undertaking that Mr Flynn would provide him with an updated outcome advice on his findings in relation to the six incidents of alleged bullying/harassment, he has never received such advice.

Mr Rotar says that it is unreasonable for the internal reviewer to find that an aspect of the complaint engaged and limited a human right without identifying what that human right is. Further, Mr Rotar says that it was not fair and reasonable for the internal review outcome report to state that Mr Rotar had not informed the Respondent of his disability as there was information about his disability on the Respondent’s occupational health and safety database.
Respondent’s further submissions
In its further submissions, the Respondent submits that the internal review decision should be upheld.
The Respondent says that its intake and assessment of grievances complies with the Directive. The referral of matters for local management action is taken in good faith and in keeping with the spirit and intent of the Directive. The Respondent also says that its processes comply with item 26.3 of the QFES HR Delegations Instrument, Commissioner QFES, No. 2 of 2021 (‘the Delegations Instrument’).
Further, the Respondent submits that its assessment of bullying and harassment grievances is consistent with the Code of Conduct for the Queensland Public Service as well as the Central Agency published Conduct and Performance Excellence Unit’s categorisation framework.

The Respondent submits that the internal review decision letter is consistent with the Directive in that the correspondence sets out the action taken initially, the internal review action, findings, recommendations, support options and the Appellant’s right to an external appeal.
Finally, the Respondent submits that the stage one local action reviewer and the stage two internal reviewer are both properly delegated officers pursuant to items 26.1 and 26.2 of the Delegations Instrument.

Consideration
The original complaint

In considering this appeal, I began by reading Mr Rotar’s ‘letter of bullying complaint against Scott Banbury’ dated 6 March 2023. In that complaint, Mr Rotar raises six allegations of what he calls ‘demonstrated threatening, discriminating behaviours and conduct’. Mr Rotar also sets out his ‘required outcomes’ which include a letter of regret from the QFES Commissioner; that Mr Banbury be disciplined; that Mr Banbury be removed from his managerial role and not be allowed to supervise or manage QFES staff until he undertakes a range of training and assessments; that all QFES supervisors and managers both public service and operational attend training run by the relevant union; and that he be immediately and permanently transferred at level to the Rural Fire Service at either the Plainlands or Laidley Regional Offices.

The Complaints Assessment Team referral of the matter for management action was reasonable

One of Mr Rotar’s appeal grounds is that he believes the CAT wrongly assessed his complaint and that it should not have been referred for management action. I have reviewed the CAT document. The CAT provides the following recommendations to management: Ascertain the validity of claims made by Mr Rotar; ascertain whether or not the timesheet matter has been addressed; discuss flexible working arrangements in relation to business requirements and the reasonableness of the requests; manage the matter in accordance with the Positive Performance Management Directive and provide Mr Rotar with the ‘TAP’ application paperwork if he still feels the need to transfer; liaise with Principal/Senior Advisor Workplace Standards for strategies; and ensure concerned parties are updated.
I am satisfied that the complaint was independently assessed by the CAT and that it was appropriate for it to be referred for management action. I understand that Mr Rotar sought a different outcome when he made his complaint in that he wanted Mr Banbury to be disciplined and removed from his position. However, having considered the matters raised in the complaint, I find that it was reasonable for the CAT to determine that there was a need to ascertain the validity of the claims made by Mr Rotar.
It was appropriate for Mr Flynn to be delegated to consider the complaint
I note that the initial process exceeded the anticipated timeline and that Mr Flynn requested an extension of time to look into the matters raised by Mr Rotar. Mr Rotar refused that request. Mr Rotar also raised concerns about Mr Flynn being appointed to investigate the matter and suggested that he may have a conflict of interest because Mr Banbury was a direct report to Mr Flynn. Mr Flynn is not a subject officer of the complaint and I am satisfied that it was appropriate for the matter to be allocated to him for local investigation. I understand that Mr Rotar holds a personal view that the matter should have been referred to an independent workplace complaints investigator, however the decision about how the complaint would be dealt with was one for the CAT. The CAT reported to Mr Reading, Acting Assistant Commissioner who sent it to Mr DePinto, Acting Chief Superintendent to be allocated and managed. Mr DePinto allocated it to Mr Flynn with an express instruction that Mr DePinto be kept at arm’s length.
I note that Mr DePinto instructed Mr Flynn regarding circumstances where action may be needed to manage Mr Rotar’s interaction and behaviours towards other staff. However, I also note that Mr DePinto’s instruction included a direction that any action required be taken in an appropriate way and that Mr Flynn should seek guidance. Given the CAT assessment had noted that there had been a previous complaint of unprofessional personal conduct substantiated against Mr Rotar where he had made inappropriate comments including, ‘I can make people disappear’ and that he had been unwilling to perform his role at existing rank when requested to work on a project, I find that this was appropriate.
I am further satisfied that Mr Flynn appropriately responded to the concerns raised by Mr Rotar and explained why he would continue to deal with the complaint. Mr Flynn appropriately noted Mr Rotar’s refusal to consent to an extension of time, indicated that he would endeavour to complete the task within the allocated timeframe, and informed Mr Rotar of the internal review process in the event that the timeline could not be met. I find that the correspondence from Mr Flynn is respectful and adequately addresses the matters raised by Mr Rotar. In that email, dated 28 April 2023, Mr Flynn also draws Mr Rotar’s attention to the Fire and Emergency Services Network:
I understand that raising a complaint can be a difficult step to take, please be advised that the Fire and Emergency Services Network (FESSN) is available to all departmental employees and volunteers. The service is a confidential counselling and support service and is available on...
On 2 May 2023, Mr Rotar replied to Mr Flynn stating that he did not understand why Mr Flynn would be offended by his simple and polite request to consider an alleged conflict of interest and recuse himself. In this correspondence, Mr Rotar proceeds to press the matter by elaborating upon his concerns with Mr Flynn as the officer handling the complaint. While I understand that Mr Rotar was frustrated at the amount of time the process was taking and that Mr Flynn had determined it was appropriate for him to continue dealing with the complaint, the tone of Mr Rotar’s correspondence is unnecessarily argumentative. For example, I find it was unnecessary for Mr Rotar to end his email to Mr Flynn by stating:
I understand taking over a new role can be taxing; please feel free also to contact the Fire and Emergency Services Network (FESSN) is [sic] available to all departmental employees and volunteers. The free, confidential counselling and support service is available on…
I am unsurprised that at this point, Mr Flynn informed Mr Rotar that he would include Ms Barker from the CAT in any future correspondence.
Mr Flynn’s management action and consultation regarding the complaint was appropriate
On 4 May 2023, noting that Mr Rotar had refused an extension of time in circumstances where Mr Flynn had received the complaint on short notice, Mr Flynn wrote to Mr Rotar to provide him with a file note which listed ‘points of clarity’ he required Mr Rotar to respond to in order to accurately deal with the complaint. Mr Flynn noted that he had repeatedly asked Mr Rotar to make himself (and a support person) available to discuss the complaint but that Mr Rotar had refused, stating that it was too short notice to obtain a union officer to attend. Noting Mr Rotar’s refusal and that Mr Flynn was closing the investigation on 9 May 2023, Mr Flynn asked Mr Rotar to provide a response. This email was also sent to Mr Rotar’s union representative.
I have read Mr Rotar’s response to the questions raised by Mr Flynn. I am satisfied that Mr Rotar was afforded an opportunity to provide information to Mr Flynn to help Mr Flynn to understand the nature of the complaint he had made.
The content of the Complaint Summary demonstrates that Mr Flynn considered the complaint and his findings and recommendations are reasonable
In Mr Flynn’s ‘Complaint Summary’ document dated 12 May 2023, Mr Flynn outlines the complaints raised by Mr Rotar. Mr Flynn sets out assessment of the complaint, the subsequent referral to him and the timeframes associated with the complaint. Mr Flynn notes that he sought an extension of time from Mr Rotar and that this was refused. Mr Flynn notes the five ‘required outcomes’ listed by Mr Rotar in his complaint, states that some of these are outside his delegation, and suggests Mr Rotar progress these outcomes through alternative avenues. For example, the employee-initiated transfers policy and procedure.
Mr Flynn lists the officers he spoke to as a part of his consultation regarding the complaint. He also notes that while Mr Rotar declined to meet with him to discuss the complaint, he did provide a written response.
Turning to Mr Rotar’s complaint about the welfare check conducted at his residence, Mr Flynn explains that Mr Banbury was instructed to both conduct the welfare check and deliver a letter to Mr Rotar while doing so. Mr Flynn’s further investigations found that the direction to conduct a welfare check had been made due to a failure of Mr Rotar to answer calls from the Injury Management Unit or collect registered mail which had been sent to him. Mr Flynn notes that this is relevant as Mr Rotar was also challenging the denial to allow him to work from home on the basis that travel to and from his residence to work was causing him fatigue.
Mr Flynn states that he interviewed Mr Woolard, who accompanied Mr Banbury during the welfare check and records some statements made by Mr Woolard regarding Mr Rotar.
Mr Flynn concludes that:
From the information collected during my enquiries, I was unable to find examples of behaviour that might meet the definition of bullying and harassment from Mr Banbury towards Mr Rotar. Mr Banbury has been acting in accordance with his managerial and duty of care obligations to both Mr Rotar and the work unit. Further that Mr Banbury has been engaging with the relevant areas of QFES (Injury Management & the Relations and Standards Branch [sic]) for advice in relation to actions he needs to take to manage Mr Rotar. Accordingly, I find the allegation against A/Inspector Banbury to be unsubstantiated.

Mr Flynn then addresses a number of other matters arising in Mr Rotar’s complaint. Firstly, he finds that any complaint Mr Rotar made that other officers he included in his correspondence did not act on his email communications to Mr Banbury is not substantiated as Mr Rotar did not make clear when including those people in his email communications that he had an expectation that they would act on the correspondence or what he expected them to do.
In terms of Mr Rotar’s allegation of disability discrimination, Mr Flynn says he had no evidence that Mr Banbury was aware that Mr Rotar had a disability. I understand Mr Rotar is aggrieved at this finding as he says that his disability was known to Mr Banbury. My impression of this part of Mr Flynn’s report is that he is considering the term ‘disability’ to be different from ‘injury’. The reason I find that Mr Flynn was not denying that Mr Banbury was aware of Mr Rotar’s injury is that in the very next paragraph, Mr Flynn goes on to state that Mr Banbury had been working with injury management to facilitate a safe return to work for Mr Rotar.
Mr Flynn finds that there is an unhappy environment within the Registered Training Organisation (‘RTO’) Compliance team and that Mr Rotar’s actions appear to be causing stress to all team members. I understand that Mr Rotar is also aggrieved by this finding, however, I find it was open to Mr Flynn to make this observation based on the information available to him. I understand Mr Rotar believes he should have been afforded a right to address any statements or information adverse to him, however, it does not appear that this finding has given rise to any referral of a complaint regarding Mr Rotar or any disciplinary action to be taken against him. While the observation made by Mr Flynn may not have been what Mr Rotar was expecting to arise from his complaint, it does not make Mr Flynn’s assessment of the complaint unfair or unreasonable.

I have reviewed Mr Flynn’s recommendations. Given Mr Rotar sought a transfer as an outcome of his complaint, it was reasonable for him to be directed to the transfer procedure. Having reviewed the complaints and Mr Rotar’s correspondence with Mr Flynn throughout the complaint process, I find it was entirely reasonable for Mr Flynn to recommend that Mr Rotar be provided with support to assist in resolving workplace issues at a local level. Further, it seems reasonable that Mr Rotar be provided some guidance regarding engagement with senior officers when he wants them to intervene in workplace issues. This is a sensible suggestion given Mr Rotar’s complaint that people he was carbon copying into his emails were not acting on the matters he was raising.
If Mr Banbury disclosed to Mr Flynn during his interview that Mr Rotar’s complaint had a negative impact on him, it was entirely reasonable for Mr Flynn to recommend that support be provided to him.
It is also entirely reasonable that Mr Flynn recommended that Mr Banbury be provided with conflict coaching and mentoring to assist him in managing individuals.

The outcome advice did not contain enough information for Mr Rotar to understand the outcome of his complaint and the recommendations relevant to him

I have reviewed the ‘Outcome Advice’ provided to Mr Rotar on 12 May 2023. The outcome advice was quite brief and should have contained more detail. It would have been appropriate for Mr Flynn to include more detail in the communication to Mr Rotar. While prepared for a different audience and purpose, the complaint summary contained a detailed explanation of the actions undertaken and the recommendations being made. I find that aspects of this summary could have formed the basis of a more detailed response to Mr Rotar. This is also the conclusion reached by Mr Bulow in the internal review and I endorse that finding.
Mr Rotar complains that the internal reviewer directed Mr Flynn to provide Mr Rotar with more information about his findings but that this has not yet occurred. While Mr Flynn may not have directly written to Mr Rotar to provide a more detailed complaint outcome, I note that since the Respondent filed its submissions on 10 October 2023, Mr Rotar has had access not only to the detailed complaint summary but also the file notes attached to it. The Respondent will receive a copy of these reasons and should ensure that Mr Flynn provides Mr Rotar a more detailed decision letter (if he has not already done so by the time I issue this decision).
The request for an internal review
Mr Rotar’s internal review request of 1 June 2023 was accompanied by several pages of submissions as to why the decision should be reviewed and why the internal reviewer should make a different decision and grant him all the outcomes he requested in his complaint.
On Monday 3 June 2023, the Acting Manager of the Workforce Support Unit wrote to Mr Rotar to acknowledge his request for internal review. In this correspondence, Mr Rotar was told that the CAT had determined to grant the request for an internal review in accordance with cl 9.2 of Directive 11/20. The correspondence lists the matters that the internal review will examine.
The correspondence informs Mr Rotar that Mr Evans, who had been assigned the internal review, was presently on leave and that he was already dealing with a different internal review request pertaining to Mr Rotar’s application for a flexible work arrangement. Mr Rotar was informed that preliminary work would commence on his internal review immediately, however, the Respondent sought his agreement to extend the completion date of the internal review to Friday 23 June 2023 to give Mr Evans time to complete the matter.

[100]On Monday 17 July, Ms Secretan, Acting Executive Manager of the Workforce Support Unit, wrote to Mr Rotar on behalf of the CAT. In that correspondence, Mr Rotar was told that the review process had been delayed and that due to urgent issues requiring attention, Mr Evans was unable to continue as the review officer. Mr Rotar was informed that Mr Bulow would be undertaking the internal review.
[101]On Tuesday 18 July, Mr Rotar replied to Ms Secretan and stated, in summary:
·It was presumptive of the unit to assume that he would agree to another extension and have his confidential case shared with other management staff.
·Mr Rotar asserts that Mr Bulow is potentially conflicted.

·Mr Rotar does not consent to an extension to the review timeframe.

·Mr Rotar has not received relief or support from the serious matters he raised in his complaint.

·Mr Rotar says he has been left to fend for himself with the same management he complained about.

·He will be seeking advice about external review.

·He may pursue the breach of confidentiality and privacy that has occurred by sharing his matter with the new reviewer without consent.

[102]On Friday 28 July 2023, Ms Secretan replied to Mr Rotar, stating, in summary:
·Mr Rotar’s lack of consent was noted, however, the Management of Complaints procedure provides that an internal review may be completed outside of the 14-day period where it can be demonstrated that reasonable attempts have been made to progress the review.
·Mr Rotar’s consent is not required in order to reallocate the review.

·Mr Bulow meets the requirements to be allocated the internal review.

·There has been no breach of confidentiality, however Mr Rotar is invited to submit a privacy complaint if he does not accept this.

·It appears he is seeking to cease the current internal review. As it is his request, he is at liberty to withdraw his request. Ms Secretan asked Mr Rotar to clarify if he wished to do so.

[103]As noted above in the background of this issue, a public sector appeal was filed by Mr Rotar regarding the internal review process. As far as I can understand, the result of that appeal was that following a conference in the Queensland Industrial Relations Commission, it was agreed that an internal review would be undertaken and that if dissatisfied by that decision, Mr Rotar may file an appeal.
[104]While it was open to Mr Rotar to raise his concern about whether Mr Bulow had a conflict of interest precluding him from undertaking the internal review, I am satisfied that Ms Secretan’s reply was reasonable. Mr Bulow was an appropriate person to conduct the review and Mr Rotar’s consent was not required.
[105]I am further satisfied that the Respondent took reasonable steps to progress the review and that Mr Rotar’s consent to an extension was not required.
[106]I do not accept that the provision of Mr Rotar’s complaint and associated material to Mr Bulow was a breach of his confidentiality. Mr Bulow required all relevant material to be made available to him so that he could undertake the internal review.

The internal review undertaken by Mr Bulow

The internal review report

[107]Mr Bulow undertook an internal review and produced an internal review report dated 22 August 2023. That report is comprehensive and I note that it has been made available to Mr Rotar as a part of the Respondent’s submissions in this appeal. That report notes the history of the complaint, the outcome of the complaint and Mr Rotar’s dissatisfaction with the outcome Mr Flynn provided to him.
[108]Mr Bulow identifies the scope of the review. The scope of the review appears to have been previously considered by the CAT prior to referring the matter first to Mr Evans and then to Mr Bulow. While Mr Rotar raises a concern about the scope of the review, I find that the matters to be considered by Mr Bulow were entirely relevant to the grounds for dissatisfaction raised by Mr Rotar in his request for internal review. The scope of the review is set out as follows:
- Whether the CAT assessment decision for complaint no. 10002175 was appropriate and consistent with assessment principles and relevant policies
- Whether Mr Flynn had a conflict of interest and/or had demonstrated bias during the complaint process

- Whether Mr Flynn afforded Mr Rotar procedural fairness during the complaint process

- Whether Mr Flynn examined all available evidence before reaching a finding on the allegations

- Whether Mr Flynn provided Mr Rotar with sufficient information to explain his decision(s) about the complaint.

[109]Mr Bulow then outlines the steps he undertook to determine whether the decision Mr Flynn made was fair and reasonable in the circumstances. Mr Bulow explained that he: read Mr Rotar’s written request for review; read the relevant documents relating to the complaints process; consulted with Mr Flynn about his management of the original complaint; considered principles relevant to procedural fairness, conflict of interest and bias; considered the principles of complaint management and assessment; considered the definition of bullying and harassment; and considered the principle of reasonable management action. Mr Bulow refers to applicable legislation, policies or delegations and lists the documents he reviewed. Mr Bulow also states that he did not directly contact or interview Mr Rotar about the complaint as Mr Rotar was on sick leave at the time and says Mr Rotar’s written submission provided sufficient information for Mr Bulow to understand Mr Rotar’s concerns and undertake the review. I am satisfied that Mr Bulow undertook appropriate steps to undertake the internal review.
[110]From pages four to eight of the internal review report, Mr Bulow discusses each of the matters listed at [108]. On page nine of the Report, Mr Bulow lists his findings and recommendations.
The internal review decision provided to Mr Rotar

[111]As far as I can identify, Mr Rotar did not receive the internal review report prepared by Mr Bulow. Rather, the outcome of the internal review was communicated to Mr Rotar by way of a letter written on 22 August 2023. That letter essentially summarises the matters raised in Mr Rotar’s internal review request and explains how Mr Bulow became the officer conducting the internal review.
[112]On page two of the letter, Mr Bulow lists his findings and on page three of the letter he recommends a number of actions arising from the review. Mr Bulow notes that the CAT assessment should have included a human rights assessment recognising that Mr Rotar’s complaint engaged a human right, being privacy and reputation. Mr Bulow further notes that while that human right is engaged, the limitation of that right was reasonable in the circumstances.
[113]Mr Bulow communicates a finding that the complaint process was conducted fairly and that he had found no evidence that Mr Flynn had demonstrated bias during the complaint process or had a conflict of interest which would have prevent the complaint being handled in a fair-minded way. Mr Bulow found that Mr Flynn had considered all six incidents raised in Mr Rotar’s complaint and whether those might amount to bullying or unreasonable management action. Importantly, Mr Bulow found that Mr Flynn’s outcome advice did not provide specific information on each of the six incidents raised in Mr Rotar’s complaint and that this was unsatisfactory.
[114]Mr Bulow then recommends that the CAT assessment of the original complaint be confirmed, noting that the human rights assessment was incomplete.
[115]Mr Bulow then requests that an updated outcome advice be provided by Mr Flynn to provide more information about his findings regarding the six allegations of bullying and harassment. This was an entirely sensible and reasonable recommendation.
[116]I note that, like Mr Flynn’s outcome letter, Mr Bulow’s outcome letter does not go into anywhere near the level of detail regarding each of Mr Rotar’s grounds for dissatisfaction with the complaint outcome that does. While the internal review report was intended for a different audience, I find that aspects of that review report could have provided the basis for a more detailed internal review outcome letter to be provided to Mr Rotar.
Mr Rotar’s reasons for appealing the decision on the basis that it was not fair and reasonable

[117]In the above consideration from [74]-[116], I have addressed many of the issues raised by Mr Rotar in his appeal and submissions. However, for completeness, I have extracted what appear to be Mr Rotar’s reasons for appealing the decision, as set out in his appeal notice, above at [34]. I will consider each in turn below.

Reason for appeal: The internal review decision did not provide clear and adequate reasons

[118]One of Mr Rotar’s reasons for appeal is that the decision communicating the findings of the internal review does not provide clear and adequate reasons and that the reasons are not linked to the material questions of the facts or other material used by the decision-maker in making the decision.
[119]Having reviewed the decision outcome provided to Mr Rotar, I agree that it does not provide enough detail for Mr Rotar to understand how the decision was arrived at. I have had the benefit of reading the internal review report, and based on this, I am satisfied that Mr Bulow considered the matters raised by Mr Rotar in his request for internal review. The issue is not that the internal review was not properly undertaken, the issue is that the outcome letter provided to Mr Rotar did not provide sufficient information. By way of example, the outcome letter states:
(a) The CAT assessment was reasonable and appropriate given the information contained in your original complaint (with the exception of the human rights assessment).

[120]Whereas the corresponding section of the internal review report states:
(a)      Whether the CAT assessment decision for complaint no. 10002175 was appropriate and consistent with assessment principles and relevant policies.
The CAT assessment document for CMS 10002175 indicates that CAT:
-         assessed the original complaint as CaPE 2;
-         assigned the sub category of careless/negligent performance of duties (within CaPE 2)

- assigned an allegation category of ‘Failure of Duty’ in relation to the alleged conduct of Mr Banbury

- assessed the matter as suitable for management resolution

- noted that a number of the allegations relating to threatening behaviour appeared to lack substance

- noted that the subject of human rights had been raised by the complainant (in connection with alleged disability discrimination), however Mr Rotar had not provided any specific information about a disability or how he had been discriminated against.

- Assessed the information provided in the complaint as not limiting or interfering with any of the human rights identified in the Human Rights Act 2019 (Qld).
Mr Rotar stated that the original CAT assessment did not give proper weight to his allegations of bullying. He also stated that the original CaPE classification assigned by CAT was CaPE 1, whereas he believed it should have been a higher classification. I note Mr Rotar was incorrect on this point, as the matter had been assessed as a CaPE 2.
I have reviewed the CAT assessment and believe it was reasonable and appropriate given the information contained in the complaint. I was not satisfied that the matters raised by Mr Rotar were of sufficient gravity to warrant a higher CaPE category or a formal investigation of the allegations. The mere mention of the word ‘bullying’ in a complaint is not sufficient to warrant a formal investigation, where the context of the identified incidents indicate the matter can be satisfactorily dealt with by management. I note that the QFES Management of Complaints procedure indicates that formal investigation processes are only to be utilised where it is considered other resolution strategies are unsuitable.
In summary, I determined that the CAT assessment of complaint no 10002175 should be confirmed, with the exception of the human rights assessment…

[121]Mr Bulow’s finding regarding Mr Rotar’s dissatisfaction with the CAT assessment of his complaint is sound and based upon a proper consideration of appropriate matters. However, I find that the internal review outcome Mr Bulow provided to Mr Rotar should have contained more detail about how he made the decision. That detail was available in the internal review report. The outcome was fair and reasonable, but the way it was communicated was not.
[122]I do not intend to undertake the exercise above for each of the elements of Mr Bulow’s written outcome of the internal review. I confirm that each of Mr Bulow’s internal review findings were reasonably open to him. However, I uphold Mr Rotar’s ground of appeal that the decision provided to him did not contain sufficient detail. I am satisfied that this can be remedied by Mr Bulow reissuing the letter to Mr Rotar either attaching the internal review report or a document containing the detailed discussion set out at section 7 of the internal review report.
Reason for appeal: Mr Rotar says he was not afforded procedural fairness

[123]I am satisfied that Mr Rotar’s request for internal review contained sufficient information for Mr Bulow to understand why Mr Rotar was aggrieved with Mr Fynn’s decision. I am further satisfied that Mr Rotar took the opportunity to raise his concerns about Mr Bulow being allocated the internal review matter for action and that this matter was appropriately addressed by Ms Secretan. It was also appropriate for Mr Bulow to determine he would not contact Mr Rotar directly while Mr Rotar was on sick leave.

In the internal review, Mr Bulow considered whether Mr Rotar had been afforded procedural fairness by Mr Flynn during the complaints process. I am satisfied that Mr Bulow undertook an extensive consideration of procedural fairness and whether Mr Flynn displayed any bias throughout his handling of the complaint. This is set out in section 7(c) of the internal review report.

[125]Mr Bulow found that while Mr Flynn’s decision should have contained more information to explain his findings, the process had been conducted in a procedurally fair manner and no bias had been detected.
[126]Having considered the approach Mr Bulow took to conducting the internal review as set out in the Respondent’s submissions, the internal review report and the decision provided to Mr Rotar, I am satisfied that Mr Bulow has conducted the matter in a procedurally fair manner. However, just as Mr Bulow found that Mr Flynn’s decision did not contain sufficient detail, I in turn find that more detailed reasons for Mr Bulow’s decision could have been provided.
Reason for appeal: Mr Rotar says that the reviewer should have looked at and used the original level one investigation and all of the supplied facts and reasons the original investigator used to form the original reason and decision

[127]Having reviewed all the material available, I am satisfied that Mr Bulow did in fact look at and use the level one investigation, associated material, the reasons of the original investigator and further consultation on the matter in undertaking the review.
[128]At section 7(e) of the internal review report, Mr Bulow states:
(e) Whether Mr Flynn examined all available evidence before reaching a finding on the allegations.
Mr Rotar raised six incidents in his original complaint, which he believed constituted workplace bullying by Mr Banbury. These incidents are identified in section 2 (background) of this report.
It was not clear from Mr Flynn’s fact finding report or the outcome advice provided to Mr Rotar whether all six incidents raised by Mr Rotar had been individually considered during the fact finding process.

The reviewer noted that CAT had elected to identify one overarching allegation for this case, which consisted of:
Allegation category:      Failure of Duty – Mr Scott Banbury
CaPE category:    2
Description:       Performance deficiencies

Precis: A/Insp Scott Banbury, Manager RTO Unit of SFEST, allegedly attended the private residence of Mr Rotar on 16/03/23 and has discussed his private information with other staff. Mr Rotar alleges he has been subjected to continued bullying and harassment by A/Insp Banbury.

It is apparent that CAT also commented on some of the alleged bullying incidents raised by Mr Rotar, to the effect that they did not appear to be threatening in nature. The CAT assessment was not meant to preclude management from examining the six incidents identified by Mr Rotar.
Mr Flynn advised that he had examined each matter (the six original matters that Mr Rotar raised) individually including speaking to the subject officer about these matters. He then holistically looked at all matters in relation to the Complaints Assessment Team (CAT) assessment of “CaPE 2 – Failure of Duty” and determined that in overall terms the allegation could not be substantiated, as none of the circumstances amounted to bullying or unreasonable conduct.
Flynn did acknowledge that further information could have been provided to Mr Rotar….

[129]Additionally, in the internal review report, Mr Bulow lists the documents he reviewed.
[130]I am satisfied that Mr Bulow informed himself of the original complaint and reviewed all the relevant material and that the process he set out in section 4 of the internal review report was satisfactory.
[131]Mr Bulow was not required to conduct his own investigation and inquiry into Mr Rotar’s original complaint. His role was to review Mr Flynn’s decision to determine if it was satisfactory.
Reason for appeal: The level one investigator was also the decision-maker and there was no separation of the investigator role and the delegated decision-maker role. This gives rise to a ground to imply that apprehended bias tainted the original decision

[132]It is unclear to me exactly what is being alleged here. The complaint was allocated to Mr Flynn with some recommendations from the CAT as to what should be considered in addressing the complaint. Mr Flynn went about reviewing the material available to him and made several findings which he captured in his report and communicated to Mr Rotar. There was no requirement for there to be a different person undertaking the fact finding and making the decision on the original complaint. The process adopted complied with the QFES Management Action Guide.
[133]This matter regarding the separation of investigation from decision-making does not appear to have been specifically raised in Mr Rotar’s request for internal review. However, Mr Bulow addresses Mr Rotar’s allegation that Mr Flynn had demonstrated bias and states that his internal review detected no bias or conflict of interest. Mr Bulow specifically addressed the interaction between Mr Flynn and Mr Rotar when Mr Rotar made allegations of bias. Mr Bulow says, ‘I do not accept that Mr Flynn’s comments about being offended by Mr Rotar’s claim that he may have a conflict of interest amount to a demonstration of bias in the matter….’.
[134]That Mr Flynn undertook investigations to inform his decision-making regarding the initial complaint is unremarkable and does not serve to make either the complaint decision or the internal review not fair and reasonable.
Reason for appeal: there is a concern about apprehended bias in the internal review as the reviewer signed their name as the review decision-maker and did not mention if another person was the delegated decision-maker

[135]I do not understand this ground of appeal and Mr Rotar’s submissions do not shed further light on the matter. It is a matter of fact that Mr Bulow was allocated the task of undertaking the internal review and that he had delegation to do so. Mr Bulow undertook the review, made findings and a range of recommendations and signed the correspondence informing Mr Rotar of the outcome. How this gives rise to apprehended bias is not clear to me. That Mr Bulow signed the outcome letter that he wrote and provided to Mr Rotar does not make the decision not fair or reasonable.
[136]As discussed earlier in these reasons for decision, Mr Rotar raised a concern about Mr Bulow’s potential bias or conflict at the time and his concern was properly addressed by Ms Secretan.
Other matters raised by Mr Rotar in his submissions
[137]Mr Rotar is dissatisfied that the original decision did not tell him why each of the six behaviours he complained about did not meet the definition of bullying. I am satisfied that Mr Bulow found that Mr Flynn had separately considered each matter but that more information needed to be provided to Mr Rotar about the outcome of the complaint. I am further satisfied that the CAT considered the matters raised by Mr Rotar and considered that the allegations were not of a serious enough nature to warrant and external investigation. Further, the CAT did not characterise the behaviours as bullying, but as a ‘Failure of Duty’.
[138]I find that it was open to Mr Flynn to determine that the actions Mr Rotar complained of were management actions and did not constitute bullying or harassment. I note that Mr Flynn relied upon the Fair Work Commission’s (‘FWC’) definition of bullying drawn from the Fair Work Act 2009 (Cth) s 789FD(1). The FWC’s Stop Bullying Benchbook says:
Workplace bullying occurs when:
· an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work,
AND
· the behaviour creates a risk to health and safety.
Reasonable management action conducted in a reasonable manner does not constitute workplace bullying.[1]
[1] Stop bullying benchbook (Fair Work Commission, 2023) 20 (emphasis in original) (citations omitted).

[139]I note that the FWC’s definition of bullying is virtually the same as that used by the Queensland Government, that ‘Workplace bullying is defined as repeated and unreasonable behaviour directed towards a worker or a group of workers, that creates a risk to health and safety.’.[2] I have considered the matters listed by Mr Rotar in his original complaint and the information gathered by Mr Flynn regarding those actions. Regardless of the particular definition of bullying relied upon by Mr Flynn, I am satisfied that it was open to Mr Flynn to determine that the Respondent’s management actions did not constitute repeated, intentional and unreasonable behaviour.
[2] Queensland Government, ‘Workplace bullying’, Workplace rights (Web page, 5 December 2017) < Mr Rotar is concerned that the decision-maker was not someone with delegation to deliver on Mr Rotar’s ‘required outcomes’ of the complaint. That Mr Rotar wanted the process to lead to discipline or demotion of Mr Banbury did not mean that it was incumbent upon the Respondent to allocate the complaint to a person with delegation to take such action. Had the local action management of the complaint led to a finding that Mr Banbury may be liable for discipline, it would be a matter for Mr Flynn to include that matter in his complaint assessment report and from there, it would be a matter that would be progressed through the appropriate channels.
Conclusion
[141]The findings Mr Bulow arrived at in the internal review decision were fair and reasonable, however, I am of the view that the written decision did not provide Mr Rotar with enough detail as to how Mr Bulow arrived at those findings.
[142]I have reviewed the Management Action Guide and I note that there are example outcome letters set out from page 12 to 19 of that Guide. I understand that any set of example letters cannot cover every possible scenario, and it may be that the level of detail provided in those letters has served as a guide to Mr Flynn, and in turn, Mr Bulow when preparing their respective outcome letters for Mr Rotar’s matters. Notwithstanding this, neither Mr Flynn’s letter nor Mr Bulow’s letter contain detail reflective of the comprehensive task both undertook in considering Mr Rotar’s complaint and evidenced in their written reports.
[143]For that reason, I am returning the matter to the Respondent with a copy of these reasons and ordering that Mr Rotar be provided with more detail to support his understanding of the outcome of the internal review. I reiterate that I am satisfied that the outcome of the internal review was fair and reasonable and that it was properly conducted.
[144]There is an extent to which the action above at [143] is a futile exercise given that Mr Rotar now has the benefit of the Respondent’s submissions in this matter and the attachments: including Mr Flynn’s written report regarding the original complaint and Mr Bulow’s written internal review report. However, I am not content to simply confirm the internal review decision in circumstances where I find the decision does not contain sufficient detail as required cl 9.2(h)(ii) of Directive 11/20.

Orders
1.That pursuant to the Industrial Relations Act 2016 (Qld) s 562C(1)(c):
(a) The matter is returned to the decision-maker with a copy of these reasons for decision; and
(b) The decision letter is to be reissued to Mr Rotar attaching or including information reflective of that contained in Section 7 of the internal review report.

[2023] QIRC 336

24 November 2023