Firefighter’s work safety review dismissed: the inspector never made a reviewable decision (TASCAT, 2026)

What happened

Firefighters employed by the Tasmanian Fire Service (TFS) raised work health and safety concerns about extra seats being used in some fire trucks and utes, which they believed pushed the vehicles over their safe operating weight. The applicant is a firefighter and an elected health and safety representative, known in the Work Health and Safety Act 2012 as an HSR. Using the power an HSR has under section 85 of that Act, he issued a direction to cease work.

TFS was unhappy with that direction. It asked the Work Health and Safety Regulator to appoint an inspector under section 82(2) to help resolve the issue. A delegate of the Regulator appointed an inspector from WorkSafe Tasmania, who attended the workplace and ran a mediation-type process that section 82 allows.

After that process, the inspector issued a document headed "Statement of Reasons for Decision". It said that the employer's own vehicle weight forms and the 100 kilogram figure used in them were the most reliable data for working out passenger limits, that management had committed to review its processes so weight limits could not be exceeded and to consult workers on the outcome, and that the firefighter had committed to cancel the cease work notice. The inspector said he was satisfied the issue was resolved as at 21 May 2026. The Statement also said there was a right of appeal to the tribunal under section 229. The tribunal found that statement was incorrect.

The firefighter disagreed that the issue was resolved. He applied for an internal review of what he described as the inspector's decision not to issue a prohibition notice, which is a direction under section 195 stopping an activity that involves a serious risk from an immediate or imminent hazard. No inspector was appointed to carry out that internal review, so no internal review happened. Three days later another inspector told him the dispute had already been through internal review and that his next step was external review by the tribunal. The tribunal found that advice was also incorrect. The firefighter then lodged this application, and the inspector applied to have it dismissed for want of jurisdiction.

What each side wanted

The firefighter asked the tribunal to set aside the inspector's decision and, in its place, have a prohibition notice issued. He argued the inspector had made a reviewable decision, that the inspector was exercising the Regulator's powers, and that it was "inconceivable" the inspector had not turned his mind to a prohibition notice given he was at the workplace because of the cease work direction. The inspector argued he had not made any decision that could be reviewed under the Work Health and Safety Act, and asked for the application to be dismissed because the tribunal had no jurisdiction.

What the tribunal decided

The tribunal made one order: the application for external review is dismissed. The inspector's interlocutory application, that is, his application on a preliminary question before any hearing of the merits, succeeded. No money was claimed or ordered.

The tribunal did not decide whether the vehicle weight issue had in fact been resolved, or whether a prohibition notice should have been issued. It said those merits questions were separate from, and came after, the question of whether it had jurisdiction at all, and because the appeal was incompetent it was unnecessary to consider them.

Why the tribunal decided it that way

The tribunal said it has no inherent jurisdiction, meaning it can only review something where legislation gives it the power to do so. Section 223 of the Work Health and Safety Act sets out an exhaustive list of which inspector decisions are reviewable. Section 229 then gives two pathways to external review by the tribunal: a reviewable decision made by the Regulator, or a decision made, or taken to have been made, on an internal review.

Neither pathway was open. The inspector was not the Regulator, and there was no evidence the Regulator had delegated any relevant power to him; the tribunal accepted the evidence of a WorkSafe Tasmania officer on that point and said delegation cannot be inferred from an absence of evidence. No internal reviewer was ever appointed, so no decision was made on an internal review. The tribunal noted that section 226(5) and (6) can deem a decision to have been confirmed on internal review if a review is applied for but not determined in 14 days, and said that provision arguably applied here, but it did not need to decide the point.

The reason it did not need to decide it was more basic: there was no underlying decision to review. Section 223(2)(a) says a reference to a decision includes making or refusing to make that decision. The tribunal held that the inspector's own label, "Statement of Reasons for Decision", was not determinative; what matters is the substance of what happened under the statutory scheme, not the form of the paperwork. The inspector plainly did not issue a prohibition notice, but the tribunal found he had not refused to issue one either. Drawing on the dictionary meanings of "decide" (to pronounce judgment, come to a conclusion) and "refuse" (to express a determination not to do something), and on the Full Court's statement in Hindrum v Lane that an affirmative belief requires more than inadvertence or not turning one's mind to the issue, the tribunal said a refusal logically requires turning one's mind to the question and reaching a conclusion. There was no evidence the inspector had considered the section 195 criteria at all, and the firefighter's submissions invited speculation.

The tribunal also rejected the argument that a failure to make a decision is itself a decision. It pointed to Parliament's use of the word "refusing" rather than "failing" in section 223(2)(a), and said the firefighter's reading would make every non-exercise of every power reviewable, which would be absurd and unworkable. Because the inspector made no decision, there was no decision made or taken to have been made on internal review, and so nothing amenable to external review. The incorrect appeal advice in the Statement and from the second inspector did not change that.

What this means if you are in a similar position

If you are in a similar position, this decision shows how narrow a tribunal's review power can be. A tribunal is not a general complaints body: it can only review the specific kinds of decisions a statute lists, reached by the specific person or office the statute names. Here the Work Health and Safety Act allowed review of a decision by the Regulator, or a decision made or deemed to have been made on an internal review, and an inspector appointed to help resolve a workplace dispute fell outside both.

It also shows that paperwork does not create a decision, and that being told you have an appeal right does not give the tribunal jurisdiction. The document in this case was headed as a statement of reasons for decision and told the firefighter he could appeal, and a second inspector repeated that advice, yet the tribunal still found there was nothing to review. What mattered was whether anyone had actually turned their mind to the particular power and come to a conclusion about it. The decision draws a firm line between refusing to do something, which can be reviewed, and simply not doing it, which cannot.

In disputes like this one, where you want an official to use a power they have not used, people usually begin by putting the request in writing to the organisation or agency involved, setting out the facts and asking for a decision and reasons in writing, and using any internal review step the legislation provides, before lodging a tribunal application.

How to apply: our step-by-step guide to a TASCAT application. More decisions: TASCAT cases and employment and wages.

Source: Cason v Inspector under the Work Health and Safety Act 2012 [2026] TASCAT 130 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.