Case v State of Queensland (Department of Attorney-General, Queensland Corrective Services) [2017] QIRC 48

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Case v State of Queensland (Department of Attorney-General, Queensland Corrective Services) [2017] QIRC 048 PARTIES: Bevan Case (Applicant) v State of Queensland (Department of Attorney-General, Queensland Corrective Services) (Respondent) CASE NO: D/2016/53 PROCEEDING: Notice of Industrial Dispute DELIVERED ON: 30 May 2017 HEARING DATES: 16 & 19 September 2016 – Hearing Dates 24 October 2016 – Respondent's Submissions 14 November 2016 – Applicant's Submissions 21 November 2016 – Respondent's Submissions (In Reply) HEARD AT: Brisbane MEMBER: Industrial Commissioner Knight ORDERS: 1. The application is dismissed. CATCHWORDS: INDUSTRIAL DISPUTE – ARBITRATION OF AN INDUSTRIAL DISPUTE – Conciliation unsuccessful – Referred to arbitration – Where the employer redeployed the applicant – Where the applicant contends that redeployment was not reasonable – Where the applicant submits the facts relied on were incorrect – Whether decision to deploy falls within managerial prerogative – Whether decision was unjust and unreasonable – Where prerogative not prevented by statute or condition of employment - Where employer has a right to manage business without external interference – Employee not restored to Dog Squad – Where employee not prevented from re- applying. -- 1 of 21 -- 2 CASES: Industrial Relations Act 1999 (Qld) Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No. 3) (2006) 182 QGIG 16 Construction, Forestry, Mining and Energy Union v HWE Mining Limited (2011) FWA 8288 Bruce Steenstra v J.J. Richards & Sons Pty Ltd (2015) FWC 7918 APPEARANCES: Mr C Massey, Counsel for the Applicant, instructed by Hall Payne Lawyers Mr J Merrell, Counsel for the Respondent, instructed by Crown Law Decision [1] Mr Bevan Case was deployed from his position within a Dog Squad based at the Wolston Correctional Centre (WCC) and the Brisbane Women's Correctional Centre, to a Custodial Correction Officer role at the WCC after a failing a re-assessment. [2] Mr Case argues it was not reasonable to move him from the Dog Squad in circumstances where he contends the decision was based on a mistaken understanding, by the decision makers, of the outcome of the re-assessment. Further, that the decision to move him out of the Dog Squad was unduly harsh. [3] Conversely, Queensland Corrective Services argues the decision to remove Mr Case from the Dog Squad was an exercise in managerial prerogative in circumstances where Mr Case failed a re-assessment, following a twelve week period of re-training. [4] Mr Case and Queensland Corrective Services participated in two conciliation conferences before another Member in an attempt to resolve the dispute, however these were unsuccessful. The dispute was subsequently referred for arbitration to determine whether Mr Case should be returned to the Dog Squad, and if so, under what conditions. Agreed Facts [5] The parties to the arbitration prepared the following Statement of Agreed Facts: 1. The Applicant commenced employment with Queensland Corrective Services in or around April 1996 and was appointed to the position of Dog Handler in the QCS Dog Squad in or around November 1997. 2. Between 1997 and 2013 the Applicant was assigned a number of different dogs in the positon of Dog Handler. 3. In May 2014, the Applicant was assigned Custodial Services Dog Victor (CSD Victor), a General Purpose dog. -- 2 of 21 -- 3 4. On 6 and 7 May 2015 an annual assessment of the Applicant and CSD Victor was undertaken by Mr Alan Swann of the Respondent (the 2015 Annual GP Assessment). Mr Swann did not recommend the Applicant and CSD Victor for certification as competent. 5. As a consequence of failing the 2015 Annual GP Assessment, the Applicant and CSD Victor were placed on a three month training plan between June and September 2015. 6. A mid-term assessment was conducted on 24 July 2015 by Mr Alan Swann. 7. A final assessment was conducted on 2 September 2016 by Mr Alan Swann. Mr Swann did not recommend the Applicant and CSD for certification as competent. This assessment is disputed by the applicant. 8. On 7 March 2016, the Applicant was asked to provide details why he should not be removed from the Dog Squad as a Dog Handler. 9. On 18 April 2016, the Applicant provided the Respondent with details why he should not be removed as a Dog Handler. 10. The Respondent made the decision to remove the Applicant as a Dog Handler from the Dog Squad on or about 7 June 2016. (Note: The reference to 2016 in Point 7 should be read as 2015. The parties have submitted the incorrect date). Question to Be Determined [6] The parties submitted the following question for arbitration: "Should Mr Case be restored to the Dog Squad and if so, under what conditions." Witnesses [7] For the Applicant, the following witnesses provided evidence: (i) Mr Bevan Case – Applicant and Dog Handler; (ii) Mr Neville Yunker – a Dog Trainer and previous work colleague of Mr Case at the Department of Corrective Services; (iii) Mr Gary McCahon – General Manager at NSW Corrective Services (current role), previously State Coordinator of the Queensland Corrective Services Dog Squad. [8] The Respondent called the following witnesses: (i) Mr Alan Swann – Manager of State Wide Dog Squad Development and Standards for Queensland Corrective Services; (ii) Ms Tamara Bambrick – General Manager at Wolston Correctional Centre; -- 3 of 21 -- 4 (iii) Ms Kate Holman – General Manager at Brisbane Women's Correctional Centre; (iv) Mr Shannon Morris – Supervisor, Dog Squad at Woodford Correctional Centre and a General Purpose Dog Instructor; (v) Mr Scott Morris – General Purpose Dog Handler Instructor at Wolston and Brisbane Women's Correctional Centre. [9] A large amount of material, including statements and video evidence, was provided by both parties to the Commission during the hearing of this matter, particularly in so far as it related to the training, assessment and management of the Queensland Corrective Services Dog Squads. Although not every detail of the evidence provided by the witnesses may be specifically repeated or outlined in these reasons, it has been taken into account in reaching a conclusion. General Background and Overview of Circumstances Leading to Dispute Queensland Corrective Services Dog Squads [10] Queensland Corrective Services Dog Squads are critical in assisting with security, barrier control and maintaining order at Corrective Service facilities across Queensland. Within Queensland Corrective Services there is a practice directive which guides, in part, the establishment, development and deployment of Dog Squads. The roles and responsibilities of Dog Squad handlers are also included in the same document. [11] A Dog Team consists of a dog handler and a corrective services dog. In this dispute, Mr Case is the dog handler and Victor is the dog. [12] Mr Alan Swann, the Manager of State Wide Dog Squad Development and Strategy, provided the Commission with a description of the varieties of dogs which are utilized within Queensland Corrective Services Dog Teams. [13] General Purpose (GP) Dogs are often German Shepherds and Rottweilers which are used for tasks such as assisting in the management and response to high-risk situations within the facilities. GP Dogs are also trained to search for drugs or substances specific to a particular area. Passive Alert Drug Detection Dogs (PADD) are generally Labradors and English Springer Spaniels which are used for tasks such as searching mail, persons and vehicles to detect contraband. [14] Dog Handlers, including Mr Case, often take on responsibility for both types of dogs, subject to a number of considerations including the individual needs of the relevant Queensland Corrective Services facility to which they are assigned. [15] Each high security correctional facility which is operated by Queensland Corrective Services has a Dog Squad attached. Dog Handler Recruitment [16] The General Manager of each corrective services facility is responsible for the facility dog squad. -- 4 of 21 -- 5 [17] Training courses are advertised and held at varying times throughout the year by Queensland Corrective Services with a view to recruiting, training and assessing Dog Teams. [18] Mr Case and Victor were members of a joint Dog Squad which services both the Wolston Correctional Centre and the Brisbane Women's Correctional Centre. [19] As this Dog Squad is shared between both the Wolston and Brisbane Women's Correctional Centre, the General Managers of those facilities share decision-making responsibilities for their Dog Squad. [20] Ms Tamara Bambrick, the General Manager at Wolston, told the Commission she is responsible for matters such as recruitment, orientation and finances, while Ms Holman, the General Manager at the Women's Correctional Centre is responsible for training and food provision matters. Minimum Competency Standards and Assessment – Dog Teams [21] The Commission was provided with guidelines which establish the minimum standards for Dog Teams within Queensland Corrective Services. The guidelines include training requirements and assessment processes for Queensland Corrective Services Dog Handlers and their allocated dogs. [22] Dog handler's responsibilities include providing timely responses to emergency situations or breaches of security, assisting in the security and control of offenders and detecting drugs and contraband entering or leaving facilities. [23] All Dog Handlers are required to pass ongoing annual assessments. One of the principle purposes of the assessment is to ensure Dog Teams are able to competently maintain security, barrier control and good order of the correctional facilities in a consistent manner. [24] The guidelines set out the criteria against which the assessments are undertaken. Dog handling assessments are currently conducted by the State Wide Manager. In this matter, the relevant assessor was Mr Swann. [25] The annual test consists of six components: (i) Obedience; (ii) Tracking; (iii) Searching; (iv) Criminal work; (v) Examination; (vi) Handler. -- 5 of 21 -- 6 [26] Under the assessment guidelines, the "Article (Property) Search" component of the assessment requires a GP Dog, under the instruction of his handler, to search an area not exceeding 25 square metres, for a number of articles made up of different materials such as leather, plastic or material bearing scent from a stranger. The articles are to be retrieved by the dog. The time allowed for this exercise is five minutes. [27] Generally, a 'Seek Bring' training method is adopted for the Article (Property) Search exercise. In a formal assessment this involves the handler issuing one command – 'Seek Bring' and the dog indicating the article and retrieving it. Some dogs are not comfortable placing certain articles or objects in their mouths and struggle to 'retrieve' the articles. When this happens, a decision may be made to issue a 'Seek Down' command which requires the dog to still indicate an article, but instead of picking it up the dog will be trained to 'down' at the article and then go down on all fours. [28] Operational Tracking is designed to re-create a real life situation such as a prisoner escaping from a correctional facility. Under the tracking component of the assessment, the handler and dog are required to follow a scent which may involve indicating or picking up previously placed articles along a track approximately one kilometer in length. The dog must remain on a lead during the exercise. It is permissible for the handler to recast the dog when, or if, he loses the track. The time allowed for this exercise is approximately fifteen minutes. [29] Operational tracking, article searching and criminal work are classed as core components because they are based on operational activities. A Dog Team must pass all three components in order to pass the annual assessment. [30] Separately, the Queensland Corrective Services' Academy has issued an instruction noting: "If the dog team fails the … assessment, the relevant … Supervisor …, in consultation with the Manager Statewide Dog Squad …, should design and implement a training program for the team. On completion of the training program, the team is to be re-assessed by the Manager … and the relevant … Supervisor … must provide a report to the relevant General Manager of the corrective services facility with a recommendation regarding, the future employment of the Dog Handler in the dog squad or the Dog Handler undertaking a re-teaming training course." Mr Case and Victor, the GP Dog – Annual Assessment and Re-Training Plan [31] Mr Case commenced employment with Queensland Corrective Services in April 1996 and was deployed to a dog squad in November 1997. In 2014, Mr Case’s dog 'Mace' was retired and he was teamed with a new dog, 'Victor'. [32] Mr Case and Victor undertook a twelve week training course between May and July 2014. On the completion of the course, Mr Case and Victor were certified as competent by Mr Mark Muharem. [33] Mr Case was certified as competent notwithstanding the Dog Team was still experiencing difficulties with article retrieval. Comments in the assessment notes for -- 6 of 21 -- 7 the training course included, "Dog Handler Case needs to address the issue of the dog retrieving articles … before next year's assessment". [34] Once certified, an ongoing requirement of all Dog Teams is the continuation of training and practical exercises in between the performance of operational duties to maintain the competency of the team. [35] In early 2015, Mr Case approached his instructors about teaching Victor the 'Seek Down' method associated with Article Searching instead of the 'Seek Bring' method, against which the team were originally assessed, in circumstances where the team was experiencing difficulties achieving consistency with article retrieval. [36] In May 2015, Mr Case and Victor participated in an annual assessment. Mr Case passed the annual assessment for his PADD dog, Jasper, but failed in respect of GP Victor. Mr Swann's evidence to the Commission was that on completion of the assessment, he determined the competency of Mr Case's Dog Team had regressed since the previous assessment. [37] Mr Swann formed the view that Mr Case did not display the correct dog training skills to achieve the necessary level of competence, noting the team had regressed from its 2014 course assessment in the areas of tracking, searching, and criminal work; and had also failed to address feedback attached to the previous assessment. [38] In response, Mr Swann met with Mr Case in May 2015, where together they viewed recordings of the assessment and held a discussion about the assessment outcome. At the time, Mr Case did not raise a grievance in response to Mr Swann's decision not to pass the dog team. In the same meeting, Mr Swann advised Mr Case it was his opinion the issues resulting in Mr Case's non-certification of competency stemmed from his capacity as a dog handler rather than problems with Victor. [39] Mr Case and his dog Victor were subsequently placed on a 12 week training program. Mr Case did not raise any objections to the training plan, the process or its content at the time of its implementation. The training plan included references to various competencies as well as feedback on areas that required improvement. [40] In particular, the plan highlighted the need for Victor to be able to both indicate and pick up articles, and for Mr Case to focus on reading dog indicators. The plan was signed by Mr Case on 15 May 2015. Mr Swann also recommended Mr Case not undertake any operational duties while participating in the training program. [41] From June 2015 until 2 September 2015, Mr Case and Victor participated in a training program. Mr Case's instructor was a General Purpose Dog Trainer from Wolston Correctional Centre, Mr Scott Morris. [42] Having considered Mr Swann's recommendation that Mr Case be taken off all operational duties, Ms Bambrick, the General Manager of the Wolston Correctional Centre, told the Commission that in circumstances where Mr Case could still be partially utilized to handle 'Jasper', she requested Mr Case undertake training with Mr Morris during and in between his rostered shifts. -- 7 of 21 -- 8 [43] Weekly training reports were prepared by Mr Morris and signed by both he and Mr Case. Under cross-examination, Mr Case conceded he had not raised any concerns during this period about a lack of time to attend to training or changing training methods associated with the 'Seek Down' or the 'Seek Bring' commands. That aside, the training notes prepared by Mr Morris indicate a lack of consistency in relation to the performance of the team over the twelve week training period for the Article (Property) Search activity. [44] On 24 July 2015, a mid-point assessment of Mr Case and Victor was undertaken by Mr Swann. Similar to other assessments, the evaluation was digitally recorded and verbal and written feedback was provided to Mr Case. [45] On completion of the assessment, Mr Swann's notes indicated Mr Case and Victor had showed an improvement in the categories of Obedience, Tracking and Criminal Work, but identified Article Searching and Intruder Detection as areas that required further attention. Mr Morris told the Commission he was of the opinion the team had improved in a number of areas, but still needed to work on a few outstanding issues. [46] A section in the notes titled "Training Plan Review Outcomes" also included comments to the effect that although the team had improved its search pattern, future training would involve a 'Seek Down' indication from Victor rather than a requirement to 'Seek Bring'. [47] The change in command occurred in circumstances where Mr Case told the Commission he had experienced ongoing challenges with the requirement for Victor to retrieve an article and return it. Mr Swann told the Commission it was essentially a case of trialing different approaches to determine what was most effective. [48] In the same document, Mr Swann noted, "Further, Handler Case's attitude was addressed and discussed on this day, information from Handler Case stated he had personal issues that have affected his current attitude and demeanour." [49] Mr Case completed the re-training program on 1 September 2015. Formal Assessment Outcome and Decision to Deploy Mr Case [50] A formal assessment of the Dog Team was undertaken by Mr Swann on 2 September 2015, where both Mr Morris and Mr Muharem were also in attendance. Visual recordings were taken for both the tracking and searching components of the assessment. [51] Following the assessment, Mr Swann determined Mr Case and Victor were not competent in respect of the tracking and article search criteria, noting concerns in relation to 'happy feet' and line handling during the tracking assessment. Separately, Mr Swann noted Mr Case had also failed to achieve a satisfactory result in relation to the 'formal retrieve' aspect of the assessment, but also commented this element of the assessment could be addressed over the following twelve month period in circumstances where it was a non-operational component of the assessment. [52] On 3 September 2015, Mr Swann prepared a memorandum for a number of managers including Ms Bambrick and Ms Holman, setting out his determination in respect of Mr -- 8 of 21 -- 9 Case's assessment and noting he and Victor had been unable to successfully complete the Operational Tracking and Article (property) Search exercises. In the same memorandum, Mr Swann concluded Mr Case remained unsuitable for operational deployment when measured against the standard assessment requirements. [53] A subsequent memorandum dated 24 September 2015, included a formal recommendation Mr Case "not be deployed as a dog handler" in circumstances where he was not competent in two core operational areas - Tracking and Article (Property) searching. [54] In a further memorandum to Ms Bambrick and Ms Holman dated 29 October 2015, Mr Swann recommended Mr Case not be deployed as a dog handler in circumstances where, according to Mr Swann, he had not achieved a satisfactory standard, notwithstanding various training opportunities were provided to Mr Case in the lead up to the assessment. [55] On 18 November 2015, Ms Bambrick and Ms Holman convened a meeting where Mr Case and his representative were invited to discuss the outcome of the assessment and Mr Swann's recommendation. A further meeting was held between Ms Bambrick, Ms Holman and Mr Morris on 25 November 2015 in relation to the training undertaken by Mr Case prior to his formal assessment on 2 September 2015. [56] Thereafter, Mr Case participated in a show cause process from 7 March 2016 until 7 June 2016, during which he was requested to provide details as to why he should not be removed from the Dog Squad in circumstances where Mr Swann had determined Mr Case had failed the tracking and searching components of the assessment. Mr Case provided a response to Queensland Corrective Services on 18 April 2016, after successfully seeking an extension of time. [57] On 7 June 2016, Mr Case was advised by Ms Bambrick that he would be moved from his position as a dog handler and placed into a custodial correctional officer role. [58] Mr Case sought an internal review of the decision on or around 16 June 2016, however the decision was upheld by Deputy Commissioner Kerrith McDermott. Following this, Mr Case lodged a notice of dispute with the Queensland Industrial Relations Commission on 22 July 2016. Submissions [59] Mr Case submitted the decision to remove him from the dog squad was not reasonable because: (i) it was based on a mistaken view of the facts; and/or (ii) was harsh [60] In particular, Mr Case argued he: (i) did not fail the article search assessment in circumstances where Victor identified or indicated three articles; -- 9 of 21 -- 10 (ii) was competent in 'reading' Victor; and (iii) the challenges he experienced with line handling and 'happy feet' during the operational tracking exercise could easily have been addressed. [61] Attention was also drawn to a number of personal challenges Mr Case was experiencing during the initial May 2015 assessment and re-training period, which were raised with his instructors during the re-training period. [62] It was also submitted that Mr Case was paired with a sub-optimal dog (Victor), in circumstances where he'd previously enjoyed 19 years of unblemished service as a dog handler with his employer. [63] Queensland Corrective Services argued the decision to remove Mr Case from the Dog Squad was an exercise in managerial prerogative, submitting the decision was not made as part of any disciplinary action, but instead due to the responsibility of the General Manager at each facility to ensure all Dog Squad teams met the relevant training and competency objectives. [64] Queensland Corrective Services submitted Mr Case failed the Property Search Assessment in circumstances where Victor failed to go down on all four legs, using the 'Seek Down' method, during his final September 2015 assessment after a period of re- training. Further, that there is no provision in the relevant guidelines or policies for a Dog Team to be given multiple or continual chances to be assessed as competent in a core unit of competence following the implementation and completion of a re-training program. [65] Queensland Corrective Services also contend there was no obligation on the Agency to re-team Mr Case with another GP Dog in circumstances where the problem with the Dog Team's competence, in Mr Swann's view, was with the handler rather than Victor. Did Mr Case and Victor fail the Article (Property) Search Component of the Assessment? [66] According to Queensland Corrective Services guidelines, a General Manager of a corrective services facility operated by the Queensland Government (in this dispute, Ms Bambrick and Ms Holman) has a broad range of responsibilities which include the appropriate control of access to a facility and the implementation of an effective barrier control system. [67] In respect of dog squad related matters, Ms Bambrick and Ms Holman are also responsible for ensuring any assigned dog squad meets the required competency objectives and is appropriately matched to the risk profile of the correctional facility. This includes ensuring Dog Handlers and their dogs meet necessary training and standards. [68] Dog Handlers are responsible for providing timely responses to any emergencies or breach of security, assisting in the security and control of prisoners, performing high- risk prisoner escort duties and detecting drugs or contraband. -- 10 of 21 -- 11 [69] Among other duties, the Manager, State Wide Dog Squad Development and Standards (in this dispute, Mr Swann), is responsible for the training, assessment and accreditation of corrective services Dog Handlers and their dogs. [70] Appendix 2 of the Custodial Practice Directive sets out, on a broad basis, the standards, training and assessment guidelines for Dog Teams, including the relevant processes to follow where a dog handler fails a re-assessment. In turn, Appendix 3 sets out the competency guidelines which include a series of exercises each Dog Team is required to complete during a formal assessment. [71] Relevantly, the guidelines for the Article (Property Search) assessment, note: "PROPERTY SEARCH Words of command – 'SEEK' 'BRING' The dog is to search an area for a number of articles bearing human scent. The articles are to be retrieved. The area to be searched is not to exceed 25 metres square. The handler may position himself/herself outside of the square….The dog should work the area enthusiastically, in a particular manner under the control of the handler." [72] At the bottom of the guidelines relating to the Article (Property Search) is a box of assessment criteria, namely: Handler to assess the area with regard to efficiency, effectiveness and safety; Correct equipment is identified and used in accordance with procedures and circumstances; On command, the dog is to search the area thoroughly and indicate location of any article; Handler to provide assistance where necessary; Handler to follow procedure; Handler to show assessor location of any articles indicated; Handler to correctly praise and reward dog; Handler to manage any problems encountered. [73] Although Mr Case acknowledges the guidelines refer to a requirement to 'retrieve' the article, or in his case, to 'down' on the article, he submitted the minimum requirements necessary to pass the assessment are for the team to find the articles and indicate (in some way) their location to the handler. Noting that an ideal situation would have been for Victor to retrieve the articles or 'down' on the articles, Mr Case maintains that a team should pass even where it doesn't do those things. [74] In support of this position, Mr Case points to the list of assessment criteria set out in a box at the bottom of the guidelines addressing the Article (Property) Search. Mr Case also highlights the outcome of a previous assessment undertaken by Mr Mark Muharem in 2014 when he and Victor initially undertook the GP training course. Although the team failed the retrieval element of the Property Search exercise, he and Victor were still assessed, overall, as being competent and permitted to take up operational duties. -- 11 of 21 -- 12 [75] In this respect, Mr Case argues that if a similar standard had been applied to the 2015 assessment, his team would have passed the Article (Property) Search assessment. Mr Case also submitted that it was Mr Swann who had insisted he change to the 'Seek Down' method with just six weeks remaining on the re-training position, therefore creating further confusion for Victor who had also been taught the 'Seek Bring' method. [76] Mr Swann told the Commission the 2014 assessment where Mr Case was deemed to be competent, took place at the conclusion of the GP training course (and not during an annual assessment) when Victor was new and still at a learning stage. He noted that at that time Victor demonstrated an understanding of the Article (Property) Search and the capacity to successfully perform it during the course. [77] Taking into consideration Mr Case's significant experience as a Dog Handler, Mr Swann said he formed a view the issues identified at the conclusion of the GP training course could be worked on, such that the Dog Team could be deemed competent by the time of the 2015 annual assessment. Further, he commented that any residual concerns about the Dog Team's performance, including the need to work on the Article (Property) Search exercise were noted in the assessment comments and conveyed to Mr Case at the time of the 2014 assessment. [78] In relation to the 'Seek Down' method, which was used by Mr Case and Victor in the final six weeks of the re-training period, Mr Swann advised the Commission that Victor was required to search the area and indicate by 'downing' at the article independent from the Dog Handler. Once the dog had 'downed' on the article, the Dog Handler could then enter the search area, retrieve the article and command the dog back to the area to search for more articles. [79] Queensland Corrective Services argued Mr Case provided further commands and prompts to Victor to 'down' at the article once it had been located in circumstances where it was permissible to give only one command. Further, that although the team may have met the minimum requirement of locating the three articles, Mr Swann was under no obligation to determine the Dog Team was competent given Victor failed to 'down' at the article without additional prompting from Mr Case. [80] During the proceedings, Mr Case's representatives raised concerns around the challenges associated with the changing training methods utilized in the Article (Property) Search, that is, from 'Seek Bring' to 'Seek Down'. Mr Swann's evidence was that the changes in the final six weeks of the re-training program occurred following discussions between himself, Mr Case and Mr Morris in circumstances where Victor was not returning articles on a consistent basis. He was aware Mr Case had previously obtained training literature about the method and that it was Mr Case who requested to change to the 'Seek Down' method. [81] Mr Swann told the Commission he agreed to Mr Case's request because it was important to determine the method that best suited the dog, noting that some dogs disliked picking up metal objects and that it was easier to train a dog to 'down' at the article. In this respect, he provided the Commission with an example of a GP Dog who had been successfully taught the 'Seek Down' method in as little as three weeks. [82] Mr Gary McCahon was called to give evidence for the Applicant, as an expert, after reviewing the video footage of the Article (Property) Search and Tracking Assessment. -- 12 of 21 -- 13 Mr McCahon previously held the position of Co-ordinator of the Queensland Corrective Services Dog Squad in the early 1990's. His evidence to the Commission was that during this period, there were no formalised policies or processes stepping through the consequences or next steps for a Dog Team which failed any one of the three operational competencies during a formal annual assessment. [83] In his Expert Report dated 31 August 2016, Mr McCahon determined the Article (Property) Search conducted by Mr Case and Victor was consistent with the assessment criteria. After viewing the video footage of the Article (Property) Search Assessment, Mr McCahon formed a view that Mr Case also demonstrated a capacity to read the indications of Victor during the Search assessment. In his opinion the team had "passed" the Article (Property) Search. [84] Under cross-examination Mr McCahon accepted that when utilising the 'Seek Down' training method, Victor was required to go down on all fours without any further commands from Mr Case. He was also of the opinion Mr Case was capable of reading Victor notwithstanding he hadn't retrieved or 'downed' at the articles during the assessment. That aside, Mr McCahon accepted it was open for Mr Swann to form the conclusion Mr Case was not competent in circumstances where reasonable people may reasonably differ in their opinions as to competency in an assessment of this nature. [85] Mr Neville Yunker, previously a Dog Trainer with Queensland Corrective Services from 2009 until 2015, was called by the Applicant to give evidence. He was able to recall that Mr Case and Victor had experienced some challenges with the Article (Property) Search exercise during the initial GP training course undertaken by the team in 2014. [86] Although Mr Yunker acknowledged Mr Case and Victor should have had points deducted due to Victor not 'downing' at the article and defecating during the formal assessment, he did not think the team should have failed the Article (Property) Search. [87] After viewing the video footage, Mr Yunker was of the opinion Victor had clearly indicated the articles. Further, that Mr Case had 'read' Victor's indications and entered the search area to 'command' Victor to 'down'. According to Mr Yunker, it was appropriate for Mr Case to enter the search area once Victor had indicated the presence of an article because he needed to issue a command for Victor. [88] To progress Victor's training, Mr Yunker was of the view Mr Case needed to ensure Victor had correctly located an article prior to issuing this command. He agreed with Mr Case's perspective that he risked detraining Victor if he commanded him to 'down' from a distance if it had been a false indication. He also noted that Victor appeared to be confused during the assessment, repeatedly looking to Mr Case for guidance in circumstances where he had been performing the 'down' method for six weeks. [89] Under cross-examination, Mr Yunker agreed that only one command, 'Seek Down' should be given to a dog in the Article (Property) Search exercise. Mr Yunker acknowledged that Mr Case prompting Victor to 'down' at the article was something he should not have done in the assessment, but did not agree this was sufficient grounds for Mr Case to have failed the Article (Property) Search, in circumstances where Mr Case and Victor had indicated the three articles. -- 13 of 21 -- 14 [90] In respect of Mr Swann's decision that Mr Case had failed the Article (Property) search assessment, Mr Yunker acknowledged that it was a view that was reasonably open to him, but later expressed the opinion that it wasn't a reasonable decision. [91] In relation to the decision by Queensland Corrective Services to move Mr Case out of the Dog Squad, Mr Yunker was of the opinion there were more suitable options available to Queensland Corrective Services in circumstances where dog handlers failed assessments. These included training, mentoring, sourcing a more suitable dog or attendance at a new training course. Mr Yunker appeared to be quite concerned about the decision to remove Mr Case. Certainly, Mr Swann confirmed that it was a rare situation. [92] Queensland Corrective Services submitted Mr Yunker's evidence should not be accepted in circumstances where he had formed a view Mr Case had been incorrectly deployed from the Dog Squad well before he had observed the recordings of the two assessments. Further, that Mr Yunker had arrived at this opinion based on details Mr Case had shared with him prior to the convening of the compulsory conference dealing with the dispute in July 2016. [93] Mr Scott Morris agreed Mr Case and Victor had met the minimum requirements for an Article (property) search test by indicating the articles, but said that Mr Case struggled to read Victor during the assessment. He was of the view the outcome was sufficient for a training exercise, but not a formal assessment. [94] Mr Morris explained there was an expectation Mr Case and Victor reach a particular standard. He was of the opinion they hadn't reached the requisite standard or outcome because, "the dog indicated the first article, moved on and then Mr Case approached that area, saw the article was there, called the dog back and then got the – the desired outcome from the dog." [95] Mr Shannon Morris, a Supervisor of the Woodford Dog Squad and General Purpose Dog Instructor was called to give evidence by Queensland Corrective Services. His evidence was that Mr Swann had asked him to take Victor into his kennels at Woodford in June 2016, which was on or around the same time Mr Case had been moved out of the Dog Squad. Initially he undertook an assessment of Victor to determine whether he was suitable for training with another trainer and to assess his current level of training. [96] In a memo to Mr Swann dated 19 June 2016, Mr Morris advised: "… 1. G.P. Dog "Victor" is suitable to continue service with the Queensland Corrective Services Dog Squads. 2. Further training to enhance the dog's skills is set to be completed by GP Instructor, Dog Handler J. Rowan at Woodford Correctional Centre. 3. G.P. Dog 'Victor' be considered for placement with a new Dog Handler and undertake another 12 week General Purpose Dog Course. Over the duration of a full course the dog will develop in all facets of training and operations. The dog will certainly meet all Agency requirements upon completion of another course." -- 14 of 21 -- 15 [97] In a subsequent memo to Mr Swann dated 12 July 2016, Mr Shannon Morris noted the following in respect of the Tracking and Article (Property) Search exercises: "Tracking – The dog meets the agencies requirements in relation to the tracking exercise and displays a very good nose-down disposition when tracking. Various grass pattern tracks have been laid for the dog. … The dog has demonstrated that he can track very well. The dog shows good indications for the loss of the track and also when he relocates the track scent to complete the exercise. These indications are easily read by the Handler. … Article Search – The dog meets the agencies requirements in relation to the article search exercise. The dog displays a good nose-down disposition when conducting article searches. The dog understands the exercise, works independently from the Handler to search and indicates the articles. The dog always locates the articles however he intermittently returns the articles all the way back to the Handler and further training is required to polish this exercise." [98] Mr Shannon Morris told the Commission the training issues with Victor related to the dog not receiving adequate training. In particular, he concluded Victor had not received adequate obedience training which flowed through to all other areas of training. He acknowledged there were challenges with the Article search, but was of the opinion that many of the issues with Victor came back to the basic core foundation of obedience. Article (Property Search) - Conclusions [99] I have been asked to find that Mr Case passed the Article (Property) Search exercise. Having considered the materials and evidence before the Commission I have concluded it was reasonable for Mr Swann to arrive at the conclusion Mr Case and Victor were not competent in this exercise on 2 September 2015, in circumstances where it was permissible to only issue one command at the commencement of the search in a formal assessment. [100] The evidence before the Commission from Mr Swann, Mr Morris and Mr McCahon is that when the 'Seek Down' method is used in a formal assessment, the GP Dog must 'down' at the article without any further commands or prompting from the handler. On his own evidence, Mr Case acknowledged he gave extra commands to Victor during the assessment. Likewise, both Mr Yunker and Mr McCahon acknowledged additional commands were given by Mr Case during the assessment and that this was not ideal. [101] Although I accept Mr Case and Victor were able to address the basic elements of the assessment criteria set out in the bottom half of the guidelines, the introductory paragraphs of the guidelines dealing with the same exercise make it clear that it was also necessary for the dog to 'retrieve' the articles, or as agreed in Victor's case to 'down' on the article. [102] It is clear Mr Case and Victor were deemed to be competent at the conclusion of the GP Training course in 2014 notwithstanding they were unsuccessful in the retrieval aspects of the exercise. On its own, I can appreciate how this appears to be inconsistent with the assessment guidelines and the subsequent outcome of the 2015 assessment. However, I accept there is a difference between the evaluation undertaken at the conclusion of an initial GP Dog training course and the subsequent annual assessments. -- 15 of 21 -- 16 [103] The 2014 assessment took place at the conclusion of a GP Dog Training Course when Victor was a new dog with much to learn. The notes and feedback provided to Mr Case at the time clearly identified the retrieval elements of the Article (Property) Search task as being an area Mr Case and Victor needed to work on prior to the annual assessment the following year. In this regard, Mr Case was effectively given twelve more months to work on this aspect of his team's performance. [104] Although it is not entirely clear as to who initiated the discussions around a change in training methods, over the course of the following year conversations were held between Mr Case and his instructors about the best approach to take to overcome the issues the team was experiencing with retrieving articles in the Property (Article) Search exercise. Eventually, mid-way through the re-training program it was decided to revert and stick to the 'Seek Down' method. On the materials before the Commission, it does not appear Mr Case objected to or raised concerns about the decision at the time. [105] During the proceedings, Mr Case raised some concerns, as did Mr Yunker, about the importance of consistency in relation to training methods and in particular the decision to change between the 'Seek Bring' and 'Seek Down' methods part way through the re- training program. Mr Case appeared to be suggesting the change in training methods contributed to him failing the initial annual assessment that led to the implementation of the re-training program, as well as his subsequent inability to pass the assessment at the conclusion of the re-training. In this regard, Mr Yunker suggested Victor appeared confused during the Article (Property) Search exercise. [106] In my view, Mr Case was put on notice about concerns relating to the Article (Property) Search in 2014. Between mid-2014 until late August 2015 he had approximately fifteen months to research, discuss and trial different methods with his colleagues and instructors to determine the best approach to resolving the challenges. In this regard, Mr Swann provided the Commission with an example of another GP Dog who was trained in the 'Seek Down' within a three week period after it experienced similar difficulties to Victor with retrieval. [107] Although I accept that not all Dog Teams have the same level of competence and the changes may have been initially confusing for Victor, the evidence before the Commission indicates Mr Case had ample time in the year leading up to the assessment and later, three months during the re-training program, to work through any difficulties and land on a preferred method for the Article (Property) Search exercise. Having then failed the assessment at the conclusion of the re-training period, I don't accept Mr Swann or the other instructors who were involved in the process were to blame in circumstances where Mr Case was ultimately responsible for ensuring his team was competent. [108] On its own, had the Article Search been the only area in which Mr Case had experienced challenges, it's possible that Mr Swann may well have made a different recommendation to Ms Bambrick and Ms Holman in relation to Mr Cases future in the Dog Squad, however there were also other areas of the assessment which the team were unable to pass. -- 16 of 21 -- 17 Did Mr Case and Victor fail the Operational Track Assessment? [109] The Operational Tracking exercise is a core unit of competence. A practical example of how tracking skills would be utilized by the team is in a situation where a prisoner has escaped. [110] Mr Case acknowledged he failed the Tracking assessment in September 2015. Likewise, his expert witness Mr McCahon, also formed the opinion Mr Case had failed the assessment. Should Mr Case have been offered additional assessment or training opportunities for the Operational Tracking exercise? [111] Mr Case was deemed to have failed this element of the 2 September 2015 assessment in circumstances where he was also unable to pass the Operational Track assessment during the annual assessment in May 2015. [112] Mr Case's representatives have submitted it was the 'extent' to which Mr Swann determined that Mr Case had failed the assessment that is of concern to the Applicant. That is, when it came to making a decision about his future in the Dog Squad, Mr Case's concern is that Mr Bambrick was unduly influenced in her decision to remove him from the Dog Squad based on Mr Swann's opinion the Applicant was having difficulties 'reading' Victor, in circumstances where both Mr Yunker and Mr McCahon considered Mr Case was able to 'read' the dog. [113] Mr Yunker was of the opinion Mr Swann should have exercised his discretion to allow the team to undertake a new track. Likewise, Mr McCahon held similar views and was of the opinion the problems identified during the assessment could easily have been addressed by some further training. [114] Mr Swann explained to the Commission that he didn't run a second operational track on 2 September 2015, because he had observed how Mr Case and Victor completed the initial track and noted Mr Case was unsure of Victor's indications when he was not tracking. In circumstances where he placed Victor back on the track as a reward, after he had lost the track, Mr Swann determined that no further training would rectify any of those issues. Operational Tracking Exercise - Conclusions [115] There is no question Mr Case failed the Operational Tracking Assessment in September 2015. This occurred notwithstanding Mr Case was afforded a further twelve weeks to revisit the exercise prior to the final assessment. In those circumstances, one can appreciate why Mr Swann might have questioned the utility of further training. [116] Both Mr Yunker and Mr McCahon were of the opinion that another assessment opportunity in the track exercise should have been afforded to Mr Case. Mr McCahon considered any problems could have been easily addressed with further training. [117] Mr Swann and ultimately Ms Bambrick and Ms Holman are responsible for maintaining the competency levels of the Dog Squad and in turn an effective barrier control system within a high security prison facility. Given this, one can appreciate the quandary Mr -- 17 of 21 -- 18 Swann faced in circumstances where a member of the Dog Squad was not able to be certified as competent notwithstanding the re-training program. [118] I agree with the Respondent's submissions that there has to be a reasonable limit on the training that should be provided to dog handlers in order to help demonstrate their competence. Likewise, there needs to be a reasonable limit on the number of assessment opportunities available to a team where they have previously failed an exercise. If there is no limit, then what is the point in conducting the assessments? [119] Mr Swann had the benefit of directly observing Mr Case during formal assessments in both May 2015 and again in September 2015. He also conducted a mid-point assessment of Mr Case in July 2016 where feedback was provided. Mr Case also participated in weekly training programs in the final twelve weeks leading up to the September 2015 assessment. [120] I have been asked to make a finding that it was unreasonable for Mr Swann not to lay a second track for Mr Case during the formal September 2015 assessment. In my view, however, his explanation for why he decided not to lay another track was reasonable in the circumstances. Would Re-Teaming Have Assisted Mr Case? [121] At the conclusion of the September 2015 assessment Mr Swann had the option of recommending Victor be replaced with another dog. In this matter, the relevant Practice Directive noted: "If the dog team fails the re-assessment the Manager Statewide Dog Squad Development and Standards or nominee and the relevant QCS dog squad supervisor must provide a report to the relevant General Manager and the Executive Director, QCSA with a recommendation regarding the future employment of the Dog Handler in the dog squad or the Dog Handler undertaking a re-teaming training course." [122] Mr Swann told the Commission he had formed a view the problem did not lie with Victor, but instead with Mr Case and his capacity to train Victor. In support of this position, Queensland Corrective Services highlighted the evidence of Mr Scott Morris, who advised Ms Bambrick and Ms Holman that he thought Mr Case needed to work on the commands he was giving to Victor in circumstances where he considered he could present 'slovenly' in the handling of Victor. [123] Likewise, Mr Shannon Morris, who spent time evaluating Victor after he had been moved from Mr Case, was of the view the training issues with Victor related to the dog not receiving adequate training. Further, that a lot of the problems came back to the core foundations of obedience and that Victor lacked obedience training. [124] Conversely, representatives for Mr Case argued he was teamed with a sub-standard animal (Victor) and may have benefitted from being re-teamed with another dog. In support of this position, Mr Case pointed to repeated difficulties experienced by Victor in the Article (Property) Search exercise which continued on into 2016. -- 18 of 21 -- 19 [125] Although it is clear that Victor did experience some difficulties with the Article (Property) Search exercise and in particular the 'Seek Bring' training method, I am not persuaded the dog was the predominant reason Mr Case failed the annual assessment and the subsequent re-training assessment. [126] Mr Case and Victor also failed other competency areas not related to the Article (Property) Search. The training and assessment notes over the course of 2014 and 2015 suggest Mr Case and Victor achieved satisfactory results in most of the core competency areas at varying times during this period, but for reasons that are still not entirely clear to the Commission, the team's performance was inconsistent and regressed. [127] Further, within a relatively short period of time, Mr Shannon Morris and other members of his team at Woodford were able to train Victor to a satisfactory standard, albeit still with some challenges in the Article (Property) Search exercise. [128] In those circumstances, I find that the recommendation made by Mr Swann not to reteam the Applicant with another dog was reasonable. Conclusion [129] The question put before the Commission to arbitrate was: "Should Mr Case be restored to the Dog Squad and if so, under what conditions?" [130] Notwithstanding Mr Case's years of service in the Dog Squad, Mr Swann was unable to certify Mr Case as competent in two core operational units – Searching and Tracking, at the conclusion of a twelve week re-training program which was implemented after he failed a prior annual assessment. [131] In Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No. 3), Commissioner Asbury relevantly stated:1 "As Justice Wright noted in Re Appeal From Determination of Public Service Arbitrator (Re Shift Work) (1969) 128 CAR 319 at 320, the Commission has throughout its existence acknowledged the right of an employer to manage and regulate its own business, subject to the protection of employees from unjust or unreasonable demands. Citing this case as a Full Bench of the Australian Conciliation and Arbitration Commission in AFULE v State Rail Authority of NSW (1984) 295 CAR 188 dealing with "manning" of XPT trains, said (at 181) that the proper test in such cases is for the Commission to examine all the facts, and not to interfere with the right of an employer to manage its own business, unless the employer was seeking from employees something that was unjust or unreasonable." [132] The general principals in relation to managerial prerogative have also been considered by Vice President Lawler,2 and more recently Deputy President Sams,3 with both 1 Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No. 3) (2006) 182 QGIG 16, 711. 2 Construction, Forestry, Mining and Energy Union v HWE Mining Limited (2011) FWA 8288. 3 Bruce Steenstra v J.J. Richards & Sons Pty Ltd (2015) FWC 7918. -- 19 of 21 -- 20 acknowledging the prerogative of an employer to conduct and manage its business as it sees fit, without external interference. [133] In this matter, I'm satisfied the decision made by Ms Bambrick and Ms Holman to remove Mr Case from the Dog Squad was an exercise of managerial prerogative. [134] On Mr Case's own evidence, he failed the Tracking Exercise. In my view, it was also open to Mr Swann to determine he had also failed the Article (Property) Search exercise. The team also failed another non-operational element of the assessment. [135] Having reviewed the materials before the Commission, I’ve been unable to identify any policies, guidelines, legislation or conditions related to Mr Case and his employment with Queensland Corrective Services that restrict or prevent Ms Bambrick and Mr Holman from exercising their prerogative in circumstances where Mr Case has not been assessed as competent. [136] Ms Bambrick and Ms Holman are responsible for implementing an effective barrier around the high security prisons they oversee. Mr Swann is responsible for ensuring the Dog Squads located in high security prisons are competent and capable of assisting in the management and response to high risk situations through control and containment. Where a dog team does not pass a re-assessment following the implementation of a re- training plan, Mr Swann is obliged to make a recommendation to the relevant Managers about the future of the dog team. [137] In the end, after considering Mr Swann's recommendation, holding a number of meetings with relevant staff and providing Mr Case with an opportunity to provide reasons as to why he shouldn't be deployed, Ms Bambrick and Ms Holman made a decision to move Mr Case into a General Correctional Services role. [138] Highlighting his extensive service in the Dog Squad, Mr Case's representatives have argued his deployment was harsh, but in circumstances where additional re-training was afforded to Mr Case over a twelve week period and where Mr Swann was satisfied the difficulties the team was experiencing were not due to Victor, he had limited options available to him. [139] Further, although the materials provided to the Commission dealt briefly with some personal difficulties Mr Case was experiencing during this period, he did not elaborate or provide the Commission with a better understanding as to how those difficulties may have impacted the training and assessment. [140] In my view, Mr Case's representatives have been unable to demonstrate Mr Swann, and in turn Ms Holman or Ms Bambrick, have made a decision that is unreasonable or unfair, nor have they been able to demonstrate the decision was based on a mistaken view of the facts. [141] For the reasons set out above, I find the recommendation made by Mr Swann and subsequent decision to remove Mr Case from the Dog Squad was one that, although no doubt disappointing for Mr Case, was reasonable, fair and just. [142] During the conduct of the proceedings, evidence in respect of Dog Handler recruitment and selection processes was provided to the Commission. As I understand it, -- 20 of 21 -- 21 Queensland Corrective Services calls for expressions of interest for potential applicants who are interested in becoming part of the Dog Squad. [143] Quite often the applicants are drawn from the existing contingent of general correctional officers within Corrective Services. The assessment process includes: (i) expression of interest / short listing; (ii) recruitment, selection and assessment activity day; (iii) formal interview; (iv) attendance at QCS dog training course; and (v) Assessment of competency. [144] In circumstances where Mr Case has not had any formal disciplinary action taken against him, I see no reason that would prevent Mr Case from providing an expression of interest to participate in the dog squad assessment process on the next occasion an opportunity presents itself. [145] To be clear I am not making an order that Mr Case be restored to the dog squad, but am merely highlighting there appears to be nothing to prevent Mr Case from obtaining a position in the dog squad in the future, subject to the standard recruitment and assessment processes that would ordinarily apply to any potential applicant. -- 21 of 21 --