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  4. Greenall v State of Queensland (Queensland Corrective Services) - [2021] QIRC 264

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Greenall v State of Queensland (Queensland Corrective Services)[2021] QIRC 264

Greenall v State of Queensland (Queensland Corrective Services)[2021] QIRC 264

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Greenall v State of Queensland (Queensland Corrective Services) [2021] QIRC 264

PARTIES:

Greenall, Darran

(Applicant)

v

State of Queensland (Queensland Corrective Services)

(First Respondent)

&

Swann, Alan

(Second Respondent)

CASE NO.:

B/2020/15

PROCEEDING:

Application for an order to stop bullying

DELIVERED ON:

30 July 2021

HEARING DATE:

6, 7, 8 October 2020

DATES OF WRITTEN SUBMISSIONS:

Applicant's final submissions filed on 11 February 2021

Respondents' final submissions filed on 4 March 2021

Applicant's final submissions in reply filed on 18 March 2021

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDER:

The Applicant's application for an order to stop bullying is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – application for an order to stop bullying – s 272 of the Industrial Relations Act 2016 (Qld) – consideration of the elements of s 275(1) of the Industrial Relations Act 2016 (Qld) for Commission to have power to make an order to stop bullying – whether the conduct of the manager, in respect of the applicant, meant the applicant was bullied in the workplace – applicant not bullied in the workplace – application dismissed

LEGISLATION:

Fair Work Act 2009 (Cth), s 789FD

Industrial Relations Act 2016 (Qld), ss 8, 272, 273 and 275

Work Health and Safety Act 2011 (Qld), s 7

CASES:

Bowers v WorkCover Queensland (2002) 170 QGIG 1

Bowker v DP World Melbourne Ltd [2014] FWCFB 9227; (2014) 246 IR 138

Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16

Comcare v Martinez (No.2) [2013] FCA 439

Ferguson and Commonwealth Bank of Australia [2012] AATA 718

Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42

Mac v Bank of Queensland & Ors [2015] FWC 774; (2015) 247 IR 274

Ms SB [2014] FWC 2104

Welsh v Logan City Council [2021] QIRC 141

APPEARANCES:

Mr C.D. Watters of Counsel, instructed by Workers First Industrial Advocates & Human Rights Lawyers, for the Applicant

Ms M. Brooks of Counsel, instructed by Crown Law, for the Respondents

Reasons for Decision

Introduction

  1. [1]
    Mr Darran Greenall ('the Applicant') is employed by the first respondent, the State of Queensland (Queensland Corrective Services) ('QCS') as a State Dog Trainer. 
  1. [2]
    The Applicant filed an application for an order to stop bullying pursuant to s 273 of the Industrial Relations Act 2016 (Qld) ('the Act'). The Applicant's claim is that he was subject to bullying by the second respondent, his Manager, Mr Alan Swann, whilst at work and further that his employer, QCS, is vicariously liable for Mr Swann's conduct in this regard (Mr Swann and QCS will be jointly referred to as 'the Respondents'). The Applicant claims that this bullying was repeated, unreasonable behaviour, which created a risk to his health and safety, and that there is a risk that behaviour will continue which amounts to him being bullied in the workplace.
  1. [3]
    The Respondents contend that the action taken against the Applicant constituted reasonable action carried out in a reasonable manner.
  1. [4]
    Having regard to the parties' submissions and to ss 272 and 275 of the Act, the questions for determination are:
  • while the Applicant was at work, did Mr Swann repeatedly behave unreasonably towards the Applicant? and, if so
  • did that behaviour create a risk to the health and safety of the Applicant? and, if so
  • was that behaviour other than reasonable management action carried out in a reasonable manner? and, if so
  • is there a risk the Applicant will continue to be bullied in the workplace? and, if so
  • what order, pursuant to s 275 of the Act, should be made?

Legal framework

  1. [5]
    The relevant sections of the Act are ss 272 and 275.

Section 275 of the Act

  1. [6]
    Section 275 of the Act outlines the Commission's power to make orders to stop bullying:

275 Commission may make orders to stop bullying

  1. (1)
    This section applies if-
  1. (a)
    an employee has made an application under section 273; and
  1. (b)
    the commission is satisfied that-
  1. (i)
    the employee has been bullied in the workplace; and
  1. (ii)
    there is a risk that the employee will continue to be bullied in the workplace.
  1. (2)
    The commission may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the employee from being bullied in the workplace.
  1. (3)
    In considering the terms of an order, the commission must take into account-
  1. (a)
    if the commission is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another entity-those outcomes; and
  1. (b)
    if the commission is aware of any procedure available to the employee to resolve grievances or disputes-that procedure; and
  1. (c)
    if the commission is aware of any final or interim outcomes arising out of any procedure available to the employee to resolve grievances or disputes-those outcomes; and
  1. (d)
    any other matter the commission considers relevant.

Section 272 of the Act

  1. [7]
    Section 272 of the Act defines when an employee is bullied in the workplace:

272  When is an employee bullied in the workplace

  1. (1)
    An employee is bullied in the workplace if-
  1. (a)
    while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards-
  1. (i)
    the employee; or
  1. (ii)
    a group of employees of which the employee is a member; and
  1. (b)
    that behaviour creates a risk to the health and safety of the employee.

Note-

For the meaning of employee for this chapter, see section 8(2).

  1. (2)
    To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
  1. [8]
    The elements of the equivalent provisions in s 789FD of the Fair Work Act 2009 (Cth) ('the FW Act') have been considered by the Fair Work Commission.
  1. [9]
    The Commission must not only be satisfied that an employee has been bullied in the workplace, but must also be satisfied that there is a risk that the employee will continue to be bullied in the workplace before the discretion to make an order can be exercised.
  1. [10]
    As outlined by Deputy President Merrell in Welsh v Logan City Council ('Welsh'),[1] the requirements of s 272 of the Act must be read together. In Welsh, Deputy President Merrell cited Ms SB ('Ms SB'),[2] with approval, in determining that a positive finding on each of the elements in s 272 must be made out for the Commission to find that an applicant has been bullied at work and if appropriate, a finding that the circumstances contemplated in s 272(2) of the Act do not apply to the behaviour.

While the employee is at work

  1. [11]
    The definition of an employee for the purposes of chapter 7 of the Act, is a worker under s 7 of the Work Health and Safety Act 2011 (Qld), other than a worker under the FW Act who may apply for an order under chapter 6, part 6-4B of the FW Act in relation to the bullying.[3]
  1. [12]
    An employee is considered to be 'at work' both during the performance of work and when the worker is engaged in some other activity which is authorised or permitted by their employer.[4]

An individual or group of individuals repeatedly behaves unreasonably towards the employee or a group of employees of which the employee is a member

  1. [13]
    As considered in Ms SB, this element implies persistent, unreasonable behaviour which might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent repeated, unreasonable behaviour, provided there is more than one occurrence. The same specific behaviour does not have to be repeated.[5]
  1. [14]
    The concept of 'unreasonable behaviour' is considered to be behaviour that a reasonable person may consider to be unreasonable, such that the assessment of the behaviour involves an objective test, having regard to all the relevant circumstances applying at the time.[6]
  1. [15]
    As determined in Mac v Bank of Queensland & Ors,[7] the legal standard of unreasonableness is not only an irrational, if not bizarre, decision or one that is so unreasonable that no reasonable person could have arrived at it. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. Notably, for conduct to be considered reasonable it does not have to be the best or preferable course of action.[8]
  1. [16]
    The features that one might expect to find in a course of repeated, unreasonable behaviour that would constitute bullying at work include intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging up, isolation, freezing-out, ostracism, innuendo, rumour‑mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.[9]
  1. [17]
    In consideration of whether there has been unreasonable behaviour, it is necessary to determine whether the alleged behaviour actually occurred.[10]

The behaviour creates a risk of health and safety to the employee

  1. [18]
    There must be a causal link between the behaviour and the risk to health and safety. The behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. A risk to health and safety means the possibility of danger to health and safety, which is not confined to actual danger to health and safety. The risk must also be real and not simply conceptual.[11]
  1. [19]
    The Applicant is not required to demonstrate that they have suffered an actual detriment to health or safety in order to demonstrate the necessary risk.

Reasonable management action carried out in a reasonable manner

  1. [20]
    Section 272(2) of the Act operates to remove any doubt by declaring that s 272(1) of the Act does not apply to reasonable management action carried out in a reasonable manner.
  1. [21]
    For s 272(2) of the Act to operate, three elements must be made out, namely:
  • the behaviour, being relied upon as repeated, unreasonable behaviour by the employee, must be management action;
  • the management action must be reasonable; and
  • the reasonable management action must be carried out in a reasonable manner.[12]

Management action

  1. [22]
    In Welsh, Deputy President Merrell determined that, when considered within the context of the purpose of the section, the phrase 'management action' should be construed to include management action about or concerning the everyday duties and incidental tasks of an employee.

Reasonable management action

  1. [23]
    Commissioner Hampton considered reasonable management action in Ms SB, making the following determinations:

[49]  Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

  • the circumstances that led to and created the need for the management action to be taken;
  • the circumstances while the management action was being taken; and
  • the consequences that flowed from the management action.

[50]  The specific 'attributes and circumstances' of the situation including the emotional state and psychological health of the worker involved may also be relevant.

[51]  The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'. In general terms this is likely to mean that:

  • management actions do not need to be perfect or ideal to be considered reasonable;
  • a course of action may still be 'reasonable action' even if particular steps are not;
  • to be considered reasonable, the action must also be lawful and not be 'irrational, absurd or ridiculous';
  • any 'unreasonableness' must arise from the actual management action in question, rather than the Applicant's perception of it; and
  • consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

[52]  For the circumstances in s. 789FD(2) of the FW Act to apply, the management action must also be carried out in a 'reasonable manner'. Consistent with the approach above, what is 'reasonable' is a question of fact and the test is an objective one.

[53]  Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.

Witnesses

  1. [24]
    The following witnesses gave evidence at the hearing for the Applicant:
  • the Applicant;
  • David Hurikino – Supervisor, Brisbane Correctional Centre Dog Squad;
  • Craig Fox – Correctional Services Dog ('CSD') Handler, Brisbane Correctional Centre, QCS;
  • Jason Carlyle – CSD Handler, Arthur Gorrie Correctional Centre ('AGCC'), QCS;
  • John Halliday – CSD Handler, AGCC, QCS;
  • Mark Muharem – Former Dog Squad Training Coordinator, QCS;
  • Michael Marinkovic – Dog Handler, Wolston Correctional Centre, QCS;
  • Peter Hageman – Dog Handler, Woodford Correctional Centre, QCS;
  • Amanda Altschwager – General Custodial Officer, AGCC, QCS; and
  • Dr Daniel Brown – Psychologist.
  1. [25]
    The following witnesses gave evidence at the hearing for the Respondents:
  • Alan Swann – Manager, Statewide Dog Squad Development and Standards, QCS;
  • Dr Ankur Gupta – Psychiatrist;
  • Alan Butler – Chief Superintendent, Capability and Development, QCS; and
  • Tammy Devlin – Business Services Manager, QCS Academy.

While the Applicant was at work, did Mr Swann repeatedly behave unreasonably towards the Applicant?

The Applicant is an employee

  1. [26]
    There is no dispute between the parties that the Applicant is an employee of QCS.

The impugned behaviour occurred while the Applicant was at work

  1. [27]
    There is no dispute between the parties that the matters in issue relate to allegations of conduct said to have occurred whilst the Applicant was at work.

What is the impugned behaviour?

  1. [28]
    The Applicant concedes that during the period 2016 to 2017, while recovering from a mental health illness and dealing with a stressful marital breakup, his performance on occasions was sub-standard. The Applicant submits that he accepted the management guidance in respect of those matters, apologised, committed to self-improvement and moved on. The Applicant also concedes that there may have been occasions when Mr Swann quite rightly raised issues with him that needed to be addressed. However, he does not concede that all of Mr Swann's management was reasonable and carried out in a reasonable manner.
  1. [29]
    The Applicant submits that Mr Swann has repeatedly engaged in and demonstrated unreasonable behaviour toward the Applicant in the workplace and further that his employer, QCS is vicariously liable for Mr Swann's conduct in this regard.
  1. [30]
    The Applicant filed a number of affidavits in the Registry, although only the final affidavit, filed 24 April 2020, was admitted into evidence.
  1. [31]
    The Applicant submits that the following conduct was not reasonable management action carried out in a reasonable manner and constitutes bullying:
  1. (a)
    making a complaint about the Applicant providing unauthorised access to a canine vendor;
  1. (b)
    alleging that the Applicant failed to wear the correct uniform;
  1. (c)
    relying on hearsay complaint concerning canine vendors;
  1. (d)
    ignoring the advice and expertise of the Applicant which resulted in the bite of CSD Ox on Mr Fox, and the bite of CSD Odin on Mr Scott Morris;[13]
  1. (e)
    failing to acknowledge or accept the advice, observations and expertise of the Applicant in respect of CSD Tex;
  1. (f)
    speaking to the Applicant about his time sheets;
  1. (g)
    the content of the report into the CSD Chain incident at Woodford Correctional Centre, failure to produce the report to the Applicant and differential treatment of the Applicant;
  1. (h)
    Mr Swann's conduct toward the Applicant during the debrief of the dog bite by CSD Ox on Mr Fox;
  1. (i)
    Mr Swann's conduct regarding an altercation between Dog Development Officer, Mr Cameron Scott and Mr Hurikino;
  1. (j)
    informing the Applicant that he would not take the next training course in May 2019, but he instead would be a participant in the course and handling CSD Odin as payback for his response to Mr Swann's supervisor about the CSD Chain incident;
  1. (k)
    requiring the Applicant to provide Mr Swann with a daily report of the Applicant's movements and activities;
  1. (l)
    not informing the Applicant about Mr Swann's trip to Warwick regarding candidates for training or informing him of a potential need to re-apply for his job;
  1. (m)
    Mr Swann misused his position by tailoring feedback and only seeking negative feedback about the Applicant's performance from training course participants;
  1. (n)
    raising the CSD Trainee dog incident in which a child was bitten;
  1. (o)
    not telling the Applicant that he would be commencing on a performance improvement plan ('PIP') in a conversation about his performance on 6 January 2020;
  1. (p)
    loading the Applicant up with additional duties when acting as Unit Manager and then identifying deficiencies in his performance, using that as the basis to place the Applicant on a PIP; and
  1. (q)
    using erroneous complaints as a basis to place the Applicant on a PIP, including the provision of incorrect claims to both Mr Butler and Ms Devlin.
  1. [32]
    The Respondents submit that the Applicant has not been bullied in the workplace and there is no risk he will be bullied when he returns to work. The Respondents state that consideration was given to placing the Applicant on a PIP by Mr Swann with advice from Ms Devlin, as his performance was found by Mr Swann to be below that expected of someone undertaking his role. The Respondents submit that the bullying application was brought in response to the Respondents' instigation of a PIP.

Did Mr Swann repeatedly behave unreasonably towards the Applicant?

  1. [33]
    I will address each incident outlined by the Applicant in his affidavit and submissions in turn. 

The Chronology document

  1. [34]
    In his submissions in reply, the Applicant states that the Chronology document prepared by Mr Swann constitutes an act of bullying itself as it contains falsehoods and misconceptions about the performance and conduct of the Applicant. The Respondents submit that the Chronology document was not relied upon to justify the proposed PIP and was prepared by the Respondents to assist them during the early stages of this litigation. It was provided to the Applicant at the conciliation conference held on 20 March 2020 and subsequently annexed to the Applicant's affidavit sworn 20 April 2020.
  1. [35]
    It appears that the Chronology document was created after the current application was filed in the Commission, and according to the Respondents was provided on a 'without prejudice' basis for the purpose of the conciliation conference. The Applicant denies that the document was produced on a ‘without prejudice’ basis. I accept the Respondents' submissions that this document was not relied upon to justify the proposed PIP, given that it was not in existence at the time, and that no action was taken against the Applicant on the basis of the Chronology.

Making a complaint about the Applicant providing unauthorised access to a canine vendor

  1. [36]
    The Applicant claims that Mr Swann was bullying him when he reported that the Applicant had escorted a canine vendor through the AGCC without authorisation.
  1. [37]
    The Applicant states in his affidavit that this event was pre-approved and pre-arranged and so occurred with authorisation. He states that:
  • the canine vendor was Senior Constable Matt Grace of the Queensland Police Service Dog Squad;
  • the Applicant was in full uniform at all times while conducting this assessment, with both Senior Constable Grace and the Applicant carrying their ID badges on their person;
  • Mr Swann did not take the matter up with the Applicant directly, rather, he made the accusation that he had provided unauthorised access to a correctional centre to Mr Butler which resulted in him being required to furnish a report; and
  • the Applicant provided written explanations to Mr Butler after which Mr Butler referred the matter to the Director, Correctional Operations, Mr Peter Shaddock, who made a determination that the Applicant had no case to answer. 
  1. [38]
    In his affidavit, Mr Swann states that he was informed of the visit by the Applicant himself and that it did not appear to him that the Applicant had followed proper process. He subsequently emailed Mr Butler about the incident and Mr Butler then provided the email to Mr Shaddock.
  1. [39]
    Mr Swann states in his affidavit that he did not make any accusations about the Applicant's conduct and that the extent of his involvement was reporting what the Applicant had told him to Mr Butler.
  1. [40]
    The Applicant gave evidence that he thought Mr Swann should have told him he was going to report the matter to Mr Butler however agreed in cross-examination that an investigation into any unauthorised access to a correctional centre was appropriate and that Mr Swann reporting a potentially unauthorised access was a reasonable thing to do.[14]
  1. [41]
    The Applicant submits that he was required to provide a report on the matter to Mr Butler after which he was able to establish that he had complied with policy and was not in breach and therefore cleared of any wrong-doing. Mr Swann accepted this summary in cross-examination.[15]
  1. [42]
    Mr Butler confirmed in his affidavit that he contacted Mr Bradley Kidd, General Manager, AGCC and received a response advising that permission for the canine vendor accompanying the Applicant was received from the Manager for Security at the AGCC that day.
  1. [43]
    Mr Butler forwarded this response to Mr Shaddock who replied noting that the canine vendor visit was sanctioned. Mr Butler advised Mr Swann and the Applicant that this ended the matter.
  1. [44]
    I am satisfied that Mr Swann acted reasonably in reporting the matter to Mr Butler given that access to the correctional centre is a highly regulated process. The Applicant was given an opportunity to explain his conduct and after his explanation was investigated and then accepted, no further action was taken.
  1. [45]
    Although Mr Swann could have handled this matter in a more forthright manner by inquiring with the Applicant at first instance, reporting it to his supervisor for further investigation is not unreasonable given the potential seriousness of the alleged conduct. 
  1. [46]
    The Applicant did not suffer any consequences by simply explaining the process by which his actions in bringing the vendor into AGCC had been sanctioned. Requesting an explanation in these circumstances is, in my view, reasonable management action taken in a reasonable manner.

Alleging that the Applicant failed to wear the correct uniform

  1. [47]
    The Applicant alleges he was sanctioned by Mr Swann for wearing a t-shirt on a 38 degree day while doing bite suit exercises. The Applicant states that it was a work health and safety issue, and that it was petty and ridiculous.[16] He also states that he was not told that he would receive a file note on his HR file following the incident.
  1. [48]
    In his affidavit, Mr Swann states that he had told the Applicant on two previous occasions not to wear a t-shirt and noted that the Applicant was often seen in an Australian Federal Police ('AFP') t-shirt and shorts.[17] Mr Swann stated that the uniform is a polo shirt and cargo pant or overalls which were designed to accommodate the heat and activities undertaken by the dog squads.[18]
  1. [49]
    The Applicant stated that Mr Swann reacted after seeing the Applicant wearing the AFP t-shirt by raising his voice in a hostile manner.
  1. [50]
    In his affidavit, Mr Marinkovic says the following with respect to this incident:

The Respondent walked down and started yelling at Mr Greenall: What are you doing in that – That's not a uniform. Everyone on that course just stood there astounded at the Respondent's attitude and behaviour toward Mr Greenall.[19]

  1. [51]
    Mr Swann's evidence is that he spoke to the Applicant about his failure to adhere to the dress code, but did not yell at the Applicant.[20]
  1. [52]
    The Respondents submit that the need to tell the Applicant on three separate occasions that he should be in uniform in the form of, at the very least, a sanctioned QCS dog squad training t-shirt, is a reasonable justification for Mr Swann to issue him with a file note.
  1. [53]
    The Corrective Services Dog Squad Training Introduction and Course Outline ('the training document') states that 'Members can wear training T-shirts or polo shirts whilst training'.[21] The QCS Code of Dress and Appearance ('the Dress Code') provides for the Dog Squad to wear operational overalls or cargo pant and polo shirt combination and a corporate uniform.  
  1. [54]
    It is common ground that there is an inconsistency between the training document and the Dress Code, with only the former document allowing for t-shirts to be worn whilst training. The Respondents submit that the production of the training document authorising the wearing of a training t-shirt does not render the Applicant's conduct acceptable. The Respondents submit that the Applicant did not tell Mr Swann he was merely following the guidance in the training document when he was pulled up for wearing a t-shirt. Rather, he told Mr Swann that he was hot wearing the bite suit. He failed to follow a reasonable direction to wear uniform on three occasions. The Respondents submit that the existence of a document that appears to allow a training t-shirt to be worn and which is inconsistent with the dress code is merely a blemish on the management action.[22]
  1. [55]
    The Respondents submit that management action does not need to be perfect; that management action might have been taken in a more reasonable way does not automatically render the action taken unreasonable.[23] The Respondents concede that it would be preferable if the documents were consistent about what is allowed to be worn but notes that neither document sanctions the use of a non-uniform t-shirt, such as an AFP t-shirt. The Respondents submit that the issuing of a file note for a failure to follow a directive to wear a uniform is reasonable management action taken in a reasonable way.
  1. [56]
    The Applicant refers to the evidence provided by Mr Swann in which he stated that he considered it inappropriate for a trainer doing bite suit work on a 38 degree day to wear a t-shirt during training. The Applicant submits that Mr Swann's agreement that he performance managed the Applicant for wearing a t-shirt on three occasions, that this matter alone is evidence of repeated unreasonable behaviour.[24] 
  1. [57]
    It is unfortunate that the uniform guidelines were not consistent with respect to the wearing of t-shirts whilst doing bite suit work. The document Mr Swann relied upon did not allow t-shirts and the document referred to by the Applicant did allow for training t-shirts. Regardless, I accept that neither document permits the wearing of a non-uniform t-shirt such as the AFP t-shirt worn by the Applicant.
  1. [58]
    The file note sent to the Applicant was written in an appropriate tone and referenced the previous occasions on which Mr Swann had spoken to the Applicant about wearing the correct QCS uniform. It is unlikely that Mr Swann would have referred to the two previous incidents in the file note if they had not occurred, and I accept on the balance of probabilities that the previous directions to wear the appropriate uniform did occur. The file note was sent to the Applicant soon after the last discussion about the inappropriate uniform. Mr Swann attached the Dress Code for the Applicant's reference which provided for the Dog Squad to wear operational overalls or cargo pant and polo shirt combination and a corporate uniform. This issuing of a file note soon after the incident was not unreasonable management action.
  1. [59]
    The manner in which Mr Swann addressed the Applicant appears to have been forthright, and possibly intemperate as indicated by the evidence of the Applicant and Mr Marinkovic. If this was the first time that the uniform issue had been raised, Mr Swann would reasonably be expected to have addressed the Applicant in a more congenial manner. However, I accept that Mr Swann had raised the uniform issue with the Applicant on two previous occasions and given a direction to only wear the authorised uniform. It was not appropriate for the Applicant to simply ignore Mr Swann's previous directions. If the Applicant was of the view that he was permitted to wear a non-uniform t-shirt under his bite suit, he could have communicated this to Mr Swann or Mr Butler, rather than simply ignoring Mr Swann's direction.
  1. [60]
    The question is not whether it is appropriate to wear a non-uniform t-shirt under a bite suit in hot temperatures, it is whether Mr Swann engaged in reasonable management action taken in a reasonable way. The Applicant was given a reasonable and lawful direction with respect to the matter and if he felt that this direction was not consistent with the training guide, he had the opportunity to raise this with Mr Swann on any of the three occasions at which this issue was mentioned. It was not appropriate to simply ignore Mr Swann's direction.
  1. [61]
    The management action with respect to this issue was less than ideal, particularly with respect to the inconsistent uniform policy. Mr Swann's manner in speaking to the Applicant on the last occasion could have been more professional, however, it was not, in my view, so inappropriate as to be considered unreasonable in the circumstances. 

Complaint concerning canine vendors

  1. [62]
    The Applicant states in his affidavit that Mr Swann bullied him and called him unprofessional whilst chastising him for contacting a dog breeder and making comments to the dog breeder about the appropriateness of their dogs for CSD work.[25] The Applicant states he was asked to provide a report and was cleared of any wrongdoing.
  1. [63]
    Mr Swann's affidavit states that he met with a dog breeder, Ms Muller, who had supplied a dog to QCS. Mr Scott, the Dog Development Officer, had subsequently told Ms Muller that the dog was not suitable. She complained that the Applicant had told her it was suitable and that she was receiving mixed messages. Mr Swann maintained that the Applicant operated outside his delegation when giving advice to Ms Muller.[26]
  1. [64]
    Ms Muller told Mr Swann she was contacted by the Applicant, however, the Applicant's evidence is that she contacted him. The Applicant maintained that Ms Muller contacted him under cross-examination.[27] Attachment 9 to the Applicant's affidavit includes screen shots of text messages from Ms Muller requesting the Applicant's opinion on the dog. Mr Swann states in his affidavit that he could not have known the full story when he reported the matter to Mr Butler.
  1. [65]
    The Respondents submit that in circumstances where a stakeholder has complained that QCS is providing mixed messages and it looks as though a staff member is acting without authority, it is not unreasonable to report the matter to senior management to investigate further, including giving the Applicant an opportunity to respond.
  1. [66]
    The Respondents submit that simply because an allegation is not ultimately substantiated does not mean the investigation ought not to have occurred, or the original report made.
  1. [67]
    In my view, the complaint from a canine vendor that she was receiving conflicting messages from QCS employees necessitated a response from Mr Swann. Ensuring consistent and appropriate communications with stakeholders from authorised employees is generally an important part of any managerial role. Mr Swann's email to the Applicant dated 11 February 2019 requesting a response regarding the matter was measured in tone and appropriate in the circumstances. The Applicant was given an opportunity to provide his version of events, which were then accepted, and no further action was taken. Mr Swann's actions were reasonable management action and were taken in a reasonable way, with the Applicant being afforded procedural fairness throughout the process.
  1. [68]
    Mr Swann records in the Chronology document an issue on 16 June 2018,[28] in which he claims that a complaint was made by a dog breeder against the Applicant for alleged inappropriate comments. The Applicant submits that Mr Swann did not manage that complaint as he was not in Queensland at the time. The Applicant submits that the complaint was managed by Mr Hurikino (as acting manager) and was found to be baseless, with the only evidence being third-party hearsay. Mr Swann was cross-examined on this matter and accepted there was no case against the Applicant.[29]
  1. [69]
    There is no evidence that the Applicant was subject to any action in the form of performance management or discipline as a result of this allegation and so cannot be considered to have been subject to unreasonable management action.

Ignoring the advice and expertise of the Applicant which resulted in the bite of CSD Ox on Mr Fox, and the bite of CSD Odin on Mr Morris

  1. [70]
    In his affidavit, the Applicant describes an incident on 26 February 2019 when Mr Fox was bitten by CSD Ox during exercise on a General Purpose ('GP') course conducted by Mr Swann. The Applicant states that he was acting as the decoy in the exercise and asked Mr Swann if he should wear a bite suit to which Mr Swann responded 'No'.[30]
  1. [71]
    The Applicant agreed in cross-examination that it was up to Mr Swann, as the instructor, to decide whether someone should wear a bite suit.[31]
  1. [72]
    Mr Fox stated in his affidavit that he witnessed the Applicant suggest to Mr Swann that personal protective equipment ('PPE') in the form of a bite suit be used by someone, and that Mr Swann said, 'We won't be needing that'.[32]
  1. [73]
    Mr Fox agreed under cross-examination that Mr Swann was head instructor and as such, it was the prerogative of Mr Swann to decide whether to use the bite suit.[33]
  1. [74]
    In cross-examination, Mr Swann's evidence was that the exercise was devised as part of the 'real life' situation training introduced by the Applicant and Mr Hurikino. He stated it was a common exercise conducted by all trainers, including the Applicant and Mr Hurikino, and that when evaluating new dogs, the Applicant did not use PPE either.[34]
  1. [75]
    It was put to Mr Swann in cross-examination that the dogs were 'amped up', however, Mr Swann responded they were performing at a level that was manageable. He did not accept that letting the dog have a rest/play between exercises would have prevented the bite to Mr Fox.[35] Mr Swann's evidence was that, in bringing the dog in between his knees, Mr Fox allowed the dog to get into a position to bite him. He said that the dog was otherwise performing well at the end of the lead. Mr Swann conceded that a work health and safety review was undertaken in respect of the incident and, as a result, PPE is now required if a handler was going to position a dog between their legs.[36]
  1. [76]
    In his affidavit, Mr Fox states that he told Mr Swann about issues with CSD Ox at the commencement of the course.[37] In cross-examination, Mr Swann agreed the dog needed an experienced handler and had been reteamed with another handler previously.[38]
  1. [77]
    The Respondents submit that even if Mr Swann did not accept the Applicant's suggestion that a bite suit be used, the evidence from Mr Fox and the Applicant is that this decision was Mr Swann's to make as the course instructor.
  1. [78]
    The Applicant claims that after the bite, Mr Swann 'continued to talk to the course [participants], ignoring the fact that he had an injured participant on the course'.[39] The Applicant claims Mr Swann took great offence, glaring at him, when the Applicant suggested, 'We need to get Foxy medical attention'.[40]
  1. [79]
    In Mr Fox's affidavit, he states that he heard the Applicant say, 'I think we need to get Foxy some medical attention' and Mr Swann responded, 'Yeah, I'm getting there Darran'.[41]
  1. [80]
    Mr Swann gave evidence that he responded saying, 'I'm dealing with it' while managing Mr Fox and CSD Ox out of the building and, 'it was the manner of the delivery of the direction to get Mr Fox medical attention'.[42]
  1. [81]
    Mr Fox gave evidence that he saw Mr Swann still talking to the group while he was trying to get out of the door.[43] In his affidavit, Mr Fox stated that when Mr Swann drove him to the hospital after the bite, Mr Swann said that he would have to have a word to the Applicant about his agitation and that Mr Fox formed the impression that he was blaming the Applicant for the incident.[44]
  1. [82]
    The Applicant gave evidence that a similar event occurred in relation to a dog bite on Mr Morris during a course run by Mr Swann. The Applicant stated that Mr Swann ignored his advice that the Applicant should handle the dog rather than Mr Morris because Mr Morris had not bonded with the dog. Mr Morris was subsequently bitten when putting the dog in the back of a truck.[45]
  1. [83]
    Mr Swann did not address the incident involving Mr Morris in his affidavit, however, under cross-examination he did not agree with the proposition that the Applicant told him that they were going to have trouble with CSD Odin and offered to handle him or that Mr Swann responded, 'No, he'll be fine'. Mr Swann gave evidence that, while he could recall that Mr Morris put the dog in the back of the truck, he did not know what occurred at the back of the truck.[46]
  1. [84]
    The Applicant submits that this evidence demonstrates an ongoing pattern of unreasonable behaviour toward the Applicant by refusing to acknowledge or accept the advice, observations and expertise of the Applicant.
  1. [85]
    The Respondents submit that Mr Swann, as the Applicant's superior, is not obliged to follow the advice of the Applicant. The Respondents submit that the evidence suggests that the Applicant wants to provide advice to Mr Swann, and just because Mr Swann is not inclined to take that advice does not lead to the conclusion that the Applicant is being bullied by Mr Swann.
  1. [86]
    The Applicant notes that the Chronology document makes reference to this event as 'Mr Greenall was involved in an incident where a dog bit a trainee and medical attention was required'.[47] The Applicant submits that at first glance, this would look like a serious performance issue requiring management, however, the evidence indicates otherwise. The Applicant states that he was the officer who foresaw the risk and suggested to Mr Swann that a bite suit be utilised for the relevant dog training exercise, and Mr Swann refused. The Applicant submits that the evidence shows that Mr Swann, who was the actual trainer for the exercise, ignored the serotonin levels of the dogs, particularly CSD Ox, did not offer a break before running through the exercise on a second occasion so as to calm the dogs down, and blamed the Applicant for his own failure, resulting in a severe dog bite on Mr Fox.
  1. [87]
    Although considerable details have been provided as to whether the actions taken by Mr Swann were appropriate in the context of dog handling, the relevant issue to be determined is whether Mr Swann's behaviour toward the Applicant was reasonable. In the situations described, Mr Swann made a decision as Manager with respect to the management of the dog training exercise. As the person in charge of the process, it was a matter for Mr Swann to determine whether or not to accept the Applicant's advice. He was not obliged to act in accordance with the Applicant's direction and his decision to not to do so was not unreasonable. The situations described may be characterised as a difference in opinion as to how best to manage a situation rather than unreasonable behaviour by Mr Swann toward the Applicant.

Mr Swann's conduct toward the Applicant during the debrief of the dog bite by CSD Ox on Mr Fox

  1. [88]
    The Applicant submits that Mr Swann returned to the Dog Training Unit at the Academy after taking Mr Fox to hospital and conducted a debrief on the incident, during which he stood over the Applicant, who was seated, pointed his finger toward his chest and berated him over the incident, as if it were the Applicant's fault.[48] The Applicant submits that this is corroborated by several other witnesses, including some who made a complaint about Mr Swann's conduct to Mr Butler.[49] The Applicant states that he made a formal complaint to Mr Butler about the alleged conduct of Mr Swann during the debrief.[50]
  1. [89]
    In Mr Swann's affidavit, his evidence is that the Applicant was 'panicked and in a heightened state' after Mr Fox was bitten.[51] In cross-examination, Mr Swann maintained that the Applicant was emotional after the bite took place.[52]
  1. [90]
    Mr Swann's affidavit describes the course participants as gathering in the dog squad room to debrief before he addressed everyone and reminded them that in such situations as the one just experienced with the dog bite, they should remain mechanical and not emotional.[53] Mr Swann noted that the Applicant was in a heightened state, however, denies the address was targeted at the Applicant and denies standing over him or making him the focus of the debrief.[54]
  1. [91]
    In cross-examination, the Applicant stated that he did not panic but rather was motivated by a duty of care towards Mr Fox.[55]
  1. [92]
    Mr Hageman gave evidence that he witnessed the Applicant getting a 'dressing down' by Mr Swann during the debrief,[56] and in his statement to the Applicant stated that Mr Swann spoke down to the Applicant in an elevated voice in an unprofessional manner, making himself and the other course participants feel very uncomfortable.[57]
  1. [93]
    In his affidavit, Mr Hurikino stated that Mr Swann stood over the Applicant and addressed him in a raised tone with his finger pointed at the Applicant.[58] Mr Hurikino gave evidence that he felt the debrief should have been done in private, away from the course participants.[59] In re-examination, Mr Hurikino stated that the Applicant was 'probably excited by it all, emotional, because he was the handler to the instructor, that was working the dog and his priority concern was the handler'.[60]
  1. [94]
    Mr Butler stated in his affidavit that the Applicant complained to him about Mr Swann's debrief following the CSD Ox incident, following which he interviewed the four witnesses identified by the Applicant. These witnesses were Mr Hurikino, Mr Hageman, Mr Morris and Mick Ciccolini.
  1. [95]
    Mr Butler gave evidence that he took contemporaneous notes of his meeting with the dog handlers involved.[61] The Applicant submits that Mr Butler's evidence under cross-examination is different to that contained in his affidavit, in that rather than diarising a contemporaneous note of his meeting with the attendees, the oral evidence shows that notes were made after the meeting and were recorded on a page in a notepad which was later torn out. Mr Butler stated in evidence that his notes were a 'reflection' of his earlier conversation with the Dog Squad officers, complaining about Mr Swann's treatment of the Applicant.
  1. [96]
    Mr Butler stated that Mr Ciccolini and Mr Hageman said that there had been no verbal or threatening behaviour by Mr Swann.
  1. [97]
    Mr Butler said that Mr Hurikino and Mr Hageman said that they thought that Mr Swann's debrief could have been delivered in private. Mr Butler denies that Mr Hurikino used terms such as 'unprofessional', 'inappropriate' behaviour or anything about standing over or point at the Applicant.
  1. [98]
    Both Mr Hurikino and Mr Hageman disagreed with the affidavit evidence of Mr Butler as to how they responded when asked about the incident as part of Mr Butler's investigation into the incident. In re-examination, Mr Hurikino states that he told Mr Butler that he thought Mr Swann's debrief was inappropriate and he told him why he thought it was inappropriate. Mr Hageman's evidence was that he conveyed to Mr Butler his view that Mr Swann could have handled the debrief in a much more professional manner.
  1. [99]
    This matter was subsequently referred to the Ethical Standards Unit and no further action was taken against Mr Swann.
  1. [100]
    On the question of whether Mr Butler was aware that the Applicant believed himself to be the subject of bullying, Mr Butler stated in his affidavit that the Applicant spoke to him on occasions about his work and that he felt undervalued in relation to his experience and contributions and that Mr Scott was held in higher regard than him. The Applicant felt that his training methods were not appreciated by Mr Swann, that he did not fit into the team and that his performance was subject to greater scrutiny than other team members. Mr Butler did not however recall the Applicant complaining that he was the subject of bullying by Mr Swann.
  1. [101]
    The Respondents submit that Mr Swann's debrief was taken by the Applicant and others present to be directed at the Applicant because of his response to the dog bite on Mr Fox, however, Mr Swann denies that was his intention. 
  1. [102]
    The Respondents submit that while it was not delivered in an ideal way, it was reasonable for Mr Swann to speak to the Applicant about the incident. The Respondents submit that the way the Applicant was spoken to in front of the others is a blemish on otherwise reasonable management action.
  1. [103]
    I am satisfied that the witness evidence of the Applicant, Mr Hurikino and Mr Hageman supports the conclusion that, in the debrief following the dog bite on Mr Fox, Mr Swann directed his comments toward the Applicant.
  1. [104]
    The evidence of Mr Swann was that the Applicant became somewhat emotional during the incident. Mr Swann indicated that his comments were directed at ensuring that employees did not become emotional during incidents such as the one that had just occurred. Mr Hurikino's evidence was that the Applicant was probably excited and emotional given that he was the trainer and his priority was the handler. In these circumstances, Mr Swann holding a debrief was a reasonable course of action to provide employees with guidance as to how situations such as that which occurred should be handled.
  1. [105]
    Although Mr Swann's evidence is that he did not address the Applicant specifically during the debrief, the evidence of Mr Hurikino and Mr Hageman suggests otherwise. On the basis of Mr Hageman and Mr Hurikino's evidence, I accept that Mr Swann directed his comments at the Applicant in a manner that was not reasonable. If Mr Swann felt that the Applicant needed to be spoken to about being mechanical rather than emotional, this conversation should not have taken place in front of other employees and should have been conducted in more professional manner.
  1. [106]
    In situations in which there is an urgent need for an employee to be spoken to about their conduct, it may be necessary to do so in front of others. However, in this situation there was no urgency as the incident had resolved and consequently, there was no requirement that the Applicant be singled out in the debrief. Mr Swann's decision to address his concerns with respect to emotional responses was reasonable management action, however, the manner in which he spoke to the Applicant in the debrief demonstrates that this action was not conducted in a reasonable manner. The Applicant rightfully felt aggrieved by this occurrence.

Failing to acknowledge or accept the advice, observations and expertise of the Applicant in respect of CSD Tex

  1. [107]
    The Applicant claims that Mr Swann ignored his advice in relation to CSD Tex in February 2018 during a dog handling course, but then acted on that same advice when it came from another dog trainer a few days later.[62] The Applicant stated in his affidavit that he became concerned that CSD Tex was showing signs of weak nerves and was starting to shut down. The Applicant states that he noticed signs of stress and became worried about the dog's ability to continue.
  1. [108]
    The Applicant alleges that he raised his concerns with Mr Swann on three occasions, during which he was ignored, shutdown and/or waved away. The Applicant states that another trainer, Mr Peter Lus, raised the same concerns with Mr Swann on 1 March 2018 after which Mr Swann immediately instructed him to remove CSD Tex from the course and to replace him with CSD Rocket.
  1. [109]
    The Applicant views this incident as an example of workplace bullying and states that Mr Swann's delay in making this decision resulted in injury to Corrective Services Officer De Salvo's partner when CSD Tex attacked her in the backyard at home on 1 March 2018.
  1. [110]
    In his affidavit, Mr Swann outlined how he and the Applicant were approached by another dog handler who held concerns about CSD Tex. Mr Swann states that there was a group discussion and a decision was made to run the dog through a decoy course occurring at the same time as the GP course. Mr Swann's evidence is that he asked the Applicant and the decoy course instructors to assess the dog during the decoy course. They did so and the dog was removed from the GP course as a result.[63]
  1. [111]
    Regardless of whether the Applicant did raise his concerns about this dog, Mr Swann was not obliged to act on these concerns. The issue here is not Mr Swann's competence as a Manager, it is whether his behaviour was unreasonable. I note that even if it is accepted that the Applicant did raise concerns previously, Mr Swann did not immediately remove the dog based upon the concerns raised by another dog handler. Mr Swann outlined that a decision was made to run the dog through a decoy course and the Applicant and the decoy course instructors were asked to assess the dog during this process. This was a reasonable response to the concerns raised.
  1. [112]
    As Manager, Mr Swann has the authority to make certain decisions and is not required to accept or act on all advice provided by subordinates. There may often be a difference of opinion with respect to a dog's suitability or other matters relating to training, however, this does not make the manager's actions unreasonable. Mr Swann actions with respect to this issue do not constitute unreasonable management action.

Speaking to the Applicant about his time sheets 

  1. [113]
    The Applicant alleges that Mr Swann spoke to him about his time sheets and this was another example of his ongoing bullying.[64] The Applicant states that this shows the trivial nature of the attacks on him by Mr Swann; that Mr Swann spoke to him about signing off two hours later than he had worked on September 2017 and on another occasion, he was told to record his finish time such that his time off in lieu ('TOIL') was not accumulated.
  1. [114]
    The Applicant states that he was treated differently to Mr Ciccolini who did not have the same request made of him. The Applicant conceded he had been spoken to by Mr Swann about time sheets on one occasion and by Mr Peter Baumanis, Acting Manager Statewide Dog Squad Development and Standards, when he was relieving in Mr Swann's position about not submitting the correct form for using accumulated TOIL.[65]
  1. [115]
    The Applicant states in his affidavit that the time on which he signed off two hours later than the hours worked was a genuine oversight on his part. He states that he was instructed to adjust his finish time to 13:34 not 14:00 when not running a training course so as to avoid incurring 15 minutes of TOIL. The Applicant states that when he questioned Mr Ciccolini, the other State Dog Trainer, no such requirement had been made of him.[66]
  1. [116]
    Mr Swann states in his affidavit that the recording of time by employees is an important issue in the public service.[67] Mr Swann recalled a time when he spoke to the Applicant about his timesheet when the Applicant signed off later than he had worked on two days in October 2019. Mr Swann did not give evidence about speaking to the Applicant in September 2017 about time sheets or TOIL and he was not asked about this allegation during cross-examination.
  1. [117]
    The Respondents submit that in circumstances where there is no additional evidence other than that of the Applicant to support his claim that he was treated differently from Mr Ciccolini, and the matter was not put to Mr Swann in cross-examination, there is no evidence the Commission can rely upon to find Mr Swann bullied the Applicant by treating him differently to Mr Ciccolini.
  1. [118]
    The Respondents submit that in circumstances where the Applicant conceded he had not completed his time sheet on one occasion in 2019, and had also been counselled by Mr Baumanis about applying his time in lieu in 2016, it is submitted there is no evidence Mr Swann was bullying the Applicant when he spoke to him about his time sheets.
  1. [119]
    I accept that the completion of accurate time sheets in the public service is an important issue and it is the responsibility of management to act on any irregularities as they arise. It was entirely appropriate for Mr Swann to raise any time sheet irregularities with the Applicant when they occurred to ensure that the time sheet reflected the Applicant's working hours.
  1. [120]
    Differential treatment of an employee with respect to TOIL arrangements in normal circumstances may be considered unreasonable, however there is insufficient evidence before the Commission that this has occurred. Mr Ciccolini did not provide evidence and Mr Swann was not asked about whether Mr Ciccolini was treated differently. I am therefore not satisfied that the Applicant was treated differently from other employees with respect to TOIL arrangements and timesheet completion. Ensuring that the Applicant was complying with the requirements with respect to his completion of time sheets was reasonable management action taken in a reasonable manner.

Mr Swann's conduct regarding an altercation between Mr Scott and Mr Hurikino

  1. [121]
    The Applicant states that a further example of bullying behaviour was Mr Swann's note in the Chronology document, that on 18 September 2018, the Applicant was involved in an altercation with two other personnel, being Mr Scott and Mr Hurikino.[68]
  1. [122]
    The Applicant submits that at first glance this would appear to be a serious performance issue, however, the facts are that the Applicant reported the altercation between Mr Scott and Mr Hurikino to Mr Swann.
  1. [123]
    The Applicant states in his affidavit that Mr Swann asked him to provide a written report on the altercation. The Applicant states that Mr Swann later abused him because he claimed the Applicant did not stand up for Mr Scott.[69]
  1. [124]
    Mr Swann acknowledged in his affidavit that the Applicant had reported the altercation to him and Mr Swann subsequently asked all those involved to each provide a report.[70] Mr Swann gave evidence that Mr Hurikino did not submit a report as requested.[71]
  1. [125]
    In the Applicant's report, he stated he had not wanted to get involved.[72] Mr Swann states in his affidavit that he later told the Applicant that he had expected that he would step in to stop the altercation but denies raising his voice.[73]
  1. [126]
    The Respondents submit that it was not unreasonable to expect that another staff member would step in to try to bring the altercation to a close or to voice that expectation.
  1. [127]
    I accept that it was reasonable management action for Mr Swann to request a report from the Applicant given that the Applicant had witnessed the altercation between Mr Scott and Mr Hurikino.
  1. [128]
    Mr Swann's admission that he told the Applicant, as I understand it, that he had expected that the Applicant would step in to stop the altercation was unusual. The two personnel involved in the altercation were not the Applicant's subordinates and were not answerable to him. The Applicant acted appropriately by informing Mr Swann of the incident and providing the subsequent report. Mr Swann's expectation that the Applicant insert himself into the disagreement in order to end the altercation was not reasonable. This was particularly so given that Mr Swann did not witness the incident and so did not have a firsthand understanding of what had occurred. Mr Swann's expectation that the Applicant step in to end such an altercation was not reasonable management action taken in a reasonable manner.

Excluded from breakfast

  1. [129]
    The Applicant states in his affidavit that he recalled arriving at work on 31 July 2018 and felt bullied as a work breakfast had been organised during which Mr Swann, Mr Scott and Mr Ciccolini were all seated around the conference table having breakfast. The Applicant stated that this occurred again on 17 October 2018.
  1. [130]
    Mr Swann denies in his affidavit that he ever held a breakfast with the training team which excluded the Applicant. Mr Swann states that he arrived at work at 8.30am on 31 July 2018 after dropping his children to school, and as the trainers commence at 6.00am, he would not have been present having breakfast when the Applicant attended the workplace on that date.
  1. [131]
    Mr Swann states in his affidavit that, on 17 October 2018, he was conducting GP dog handler team assessments commencing at 7.00am. Again, Mr Swann states that, as the Applicant commences work at 6.00am, that he would not have been present having breakfast when he attended the workplace on that date.
  1. [132]
    This issue was not raised in cross-examination and as such there is no further evidence which can be assessed to consider the particulars of these events. If the breakfast was a formal work breakfast organised by Mr Swann, the exclusion of the Applicant may well be considered unreasonable. However, the alleged circumstances surrounding the breakfasts are unclear from the Applicant's affidavit and it is therefore difficult to ascertain whether the breakfasts happened at all and if they did, if they were in fact work events or informal catch-ups between work colleagues having breakfast at the same time.
  1. [133]
    As a result of the lack of evidence with respect to this allegation, I am unable to be satisfied that the events occurred and consequently, cannot be satisfied that Mr Swann's behaviour was unreasonable in the circumstances.

The content of the report into the CSD Chain incident at Woodford Correctional Centre; failure to produce the report to the Applicant, and differential treatment of the Applicant.

  1. [134]
    On 19 November 2018, Mr Swann submitted a report concerning the failure of CSD Chain to respond to a security incident inside the Woodford Correctional Centre.[74]
  1. [135]
    The Applicant submits that this report failed to identify that Mr Swann himself had personally authorised and signed-off on CSD Chain for active duty only days before the incident. Mr Swann's report also failed to identify that he had been warned in writing by the Applicant that the dog needed to be rested before going into active duty in a prison. The Applicant submits that the report alleged or inferred that the failure by CSD Chain was the fault of the trainer, being the Applicant. The Applicant states there was a meeting held on 30 November 2018 to discuss performance issues in the team but the 'real purpose' of that discussion was the CSD Chain incident and it appeared to the Applicant from that discussion, that Mr Swann was attempting to 'shift the blame' for the incident to the Applicant.[75]
  1. [136]
    Mr Swann's affidavit attaches the email telling the Applicant that the meeting will be about the CSD Chain report and other issues.[76] The Applicant initially gave evidence that the meeting was 'all to do with Chain',[77] however, conceded that other issues were discussed at the meeting and that he was given a chance to respond in a report dated 4 December 2018.[78]
  1. [137]
    The Applicant gave evidence that he had to pursue Mr Butler for a copy of Mr Swann's report because Mr Swann refused to release it to the Applicant. The Applicant was ultimately provided with a copy of the report by Mr Butler and provided a response to issues raised in the 30 November 2018 meeting.[79]
  1. [138]
    On 4 December 2018, the Applicant provided a response to the 'Chain Report', confirming his previous written recommendation to Mr Swann.[80] The Applicant states that it was established that while Mr Swann was responsible for approving CSD Chain into active service in a prison, there had been a previous similar incident involving CSD Echo (trained by Mr Swann) at the AGCC which was not investigated. The Applicant submits that this demonstrates Mr Swann was treating the Applicant differently in the 'Chain' case, where inferences were made about the Applicant's training but in the 'Echo' case, no investigation occurred.
  1. [139]
    Mr Swann stated in cross-examination that no one person was responsible for the failure of the dog to respond appropriately when it was deployed.[81] Mr Swann agreed he signed the dog off after its training. Mr Swann agreed that the Applicant wrote him an email saying he thought CSD Chain needed a rest on 6 November 2018 and he did not read that email until after he had signed off the dog and the dog was deployed.[82]
  1. [140]
    Mr Swann could not recall why he did not receive or read the email until after the deployment and explained that, in any event, the unit does not have the luxury of telling a General Manager he cannot have the dog because it needs a rest at that stage.[83] Mr Swann explained the trainers do their best to prepare the dogs, and it was the responsibility of the trainers to assess the dogs to determine whether they should continue on to complete the course.[84]
  1. [141]
    The Applicant asserted that it was not normal practice to commence an investigation like the one undertaken by Mr Swann into the Chain incident.[85] It was put to Mr Swann that a similar incident involving a dog trained by Mr Swann was not investigated. Mr Swann gave evidence that it was not his decision to investigate the incident and he was tasked to complete the report into the CSD Chain incident by the General Manager for Operations.[86] Mr Swann stated that he could not recall the incident where he had trained a dog that had failed to perform, however if this occurred it would have been the staff at the centre who ought to have raised the incident for investigation.
  1. [142]
    It appears that it was not Mr Swann who initiated the investigation into the failure of CSD Chain to respond, rather, it was done at the instigation of Mr Butler. It was entirely reasonable for Mr Butler to investigate the performance of a dog following an incident such as the one involving CSD Chain. There may have been other occasions in which a dog did not perform as expected which were not investigated, however, that does not make the decision to investigate this incident unreasonable. The particular aspects of each dog's performance and the nature of their failures will depend on the circumstances and it is reasonable for management to determine which particular circumstances warrant an investigation.
  1. [143]
    Having read the report, I am not of the view that it infers that the Applicant was responsible for the incident involving CSD Chain. The report provides an explanation of the dog's history and the involvement of a number of people with the dog over time. Whilst the Applicant may perceive that the report reflects adversely on him as a trainer, this is a subjective assessment which does not, in my view, reflect the content of the report.
  1. [144]
    The meeting referred to by the Applicant involved, inter alia, a discussion about CSD Chain. The Applicant was given a copy of the report and afforded an opportunity to respond to the report. The Applicant was not subject to any action following the investigation, which was not unexpected given that his conduct was not the subject of any specific criticism in the report. It does not seem to me that the Applicant was treated unreasonably in these circumstances.
  1. [145]
    It appears that the Applicant was seeking some form of vindication with respect to this matter, given that he identified the potential difficulty with CSD Chain needing rest and having notified Mr Swann prior to the incident of his concerns. Whilst the Applicant may be commended on his judgment in this matter, it does not follow that the report into the matter was unreasonable management action. Mr Butler acted reasonably in directing that a report be prepared, and Mr Swann acted reasonably in providing the report. These management actions are not unreasonable and were not carried out in an unreasonable manner.

Requiring the Applicant to provide Mr Swann with a daily report of the Applicant's movements and activities

  1. [146]
    The Applicant alleges that after he submitted his report concerning CSD Chain dated 4 December 2018, he was asked to provide daily reports to Mr Swann on his work movements and activities, and that he was the only person in the workplace being required to do so.[87]
  1. [147]
    Mr Swann stated in his affidavit that he has previously asked the Applicant to give him weekly updates on his activities, and he has not had to make the same request of Mr Ciccolini because he already provides Mr Swann with daily reports of his activities. Mr Swann's evidence is that he has never asked the Applicant to give him daily reports.[88]
  1. [148]
    Mr Swann's evidence is that he did not request daily reports, rather the issue raised was the quality of the weekly reports. Mr Swann states that the Applicant would cut and paste on a regular basis and therefore, the document was of limited to no value. The purpose of the weekly reports is to communicate with the trainee participant their current progress, emerging issues and goal setting for the next training period. Mr Swann's evidence is that the Applicant's weekly reports were not reflective of any progress, ongoing or emerging issues and were not adding value to any process.
  1. [149]
    It is not unreasonable for a manager to request reports on the activities of employees for whom they are responsible. I accept Mr Swann's evidence that Mr Ciccolini provided him with daily reports of his activities. The Applicant's claim that he was the only person in the workplace required to provide daily reports is not borne out by the evidence.
  1. [150]
    Mr Swann stated that he requested that the Applicant provide him with weekly updates on his activities, rather than the daily reports claimed by the Applicant. Depending on the particular nature of an employee's duties, it is not unreasonable for a manager to request reports on an employee's daily activities in a general sense, regardless of whether the updates are weekly or daily. Mr Swann's actions in requesting either weekly or daily updates on the Applicant's activities was reasonable management action taken in a reasonable manner. 

Informing the Applicant that he would not take the next training course in May 2019 but he instead would be a participant in the course

  1. [151]
    The Applicant's affidavit states that in December 2018, he was informed by Mr Swann that he was going to participate in the next GP training course and handling recruit CSD Odin. The Applicant submits that this was 'payback' for his response to Mr Swann's supervisor about the CSD Chain incident. The Applicant states that such a move was intended to cause embarrassment to the Applicant and to belittle and bully him and was not a mentoring opportunity.[89]
  1. [152]
    In Mr Swann's affidavit, he states that he met with both the Applicant and Mr Ciccolini to let them know which handlers they would be responsible for, and that the Applicant would be running CSD Odin through the course and Mr Ciccolini would also be a participant in the course.[90]
  1. [153]
    The Applicant states in his affidavit that the Chronology document reports that he was to be mentored during the instructions and assessment on this course, however, this was inaccurate as he was informed that he would be training a dog. The Applicant states that this was designed to belittle and bully him and cause him professional embarrassment.
  1. [154]
    The Respondents submit that humiliation or embarrassment on the part of the Applicant does not render the action by Mr Swann an illegitimate exercise of authority.[91]
  1. [155]
    I am not persuaded that Mr Swann's intentions in directing the Applicant to participate in the course were to embarrass the Applicant or to exercise 'payback' for the Applicant's response regarding the CSD Chain incident. I accept Mr Swann's evidence that Mr Ciccolini was also directed to be a participant in the course, indicating that both were treated equally in the process. Although the Applicant may have felt embarrassed, this does not mean that Mr Swann's actions constitute unreasonable management action.

Not informing the Applicant about Mr Swann's trip to Warwick regarding candidates for training or informing him of a potential need to reapply for his job

  1. [156]
    The Applicant alleges in his affidavit that Mr Swann liaised with a breeder in Warwick without his knowledge when the Applicant had responsibility for assessment of candidate dogs for training, including their breeding. The Applicant claims that Mr Swann also told Mr Ciccolini he was planning on upgrading the State Dog Trainer positions such that the Applicant would have to reapply for his job.[92]
  1. [157]
    The Applicant states in his affidavit that he arrived at work on 7 March 2018 to discover that Mr Swann was absent in Warwick, meeting with a German Shepherd breeder.
  1. [158]
    In Mr Swann's affidavit, he states that the Applicant was unable to attend any meeting with a breeder at that time because he was conducting a GP course. Mr Swann stated that he was not required to inform the Applicant that he was attending a meeting with a breeder, and he informed Mr Ciccolini that he was attending the meeting because he happened to be in the office at the time he departed.[93] Mr Swann denies telling Mr Ciccolini that the Applicant would have to reapply for his position.
  1. [159]
    The Applicant agreed in cross-examination that Mr Scott, who accompanied Mr Swann on the trip, occupied the temporary role of Dog Development Officer.[94]
  1. [160]
    It seems reasonable to assume that Mr Swann attending a meeting with a breeder accompanied by Mr Scott was an unremarkable occurrence given that Mr Swann was the manager in charge of dog training and Mr Scott had responsibilities for dog development. Mr Swann's evidence that he informed Mr Ciccolini that he was attending the meeting simply because Mr Ciccolini happened to be in the office at the time was a reasonable explanation as to why Mr Ciccolini was made aware of the meeting.
  1. [161]
    Mr Swann denied telling Mr Ciccolini that the State Dog Trainers would have to reapply for their jobs and, as stated, Mr Ciccolini did not give evidence in this matter. There is insufficient evidence for me to be persuaded that this statement was made by Mr Swann as claimed.
  1. [162]
    As Manager, it was reasonable for Mr Swann to attend the meeting with Mr Scott given the duties associated with their roles. Mr Swann was not required to advise the Applicant of this meeting and cannot be considered to have acted unreasonably by not doing so, particularly given that the Applicant was unable to attend.

Mr Swann misused his position by tailoring feedback and only seeking negative feedback about the Applicant's performance from training course participants

  1. [163]
    The Applicant alleges that Mr Swann misused his position by tailoring feedback and only seeking negative feedback concerning the Applicant's performance when carrying out training courses.[95]
  1. [164]
    The Affidavit of Mr Marinkovic states that he witnessed Mr Swann encourage negative feedback, stating:

I have witnessed him [Mr Swann] attempting to encourage or influence negative feedback against Mr Greenall. I have witnessed him attempting to befriend people who give negative feedback and I have seen him snarl and rebuke people (like me) who give positive feedback.[96]

  1. [165]
    Mr Swann denied the allegations made by Mr Marinkovic in his affidavit and under cross-examination.[97]
  1. [166]
    The Respondents submit that, apart from stating he personally was 'snarled' at when providing positive feedback, Mr Marinkovic's affidavit provides no details of what he witnessed, who was involved and when this occurred or what evidence he has that only negative feedback was ultimately collected.
  1. [167]
    In cross-examination, Mr Marinkovic told the Commission he had complained of the alleged conduct to Mr Swann and to his superiors at Wolston Correctional Centre but he was not aware of the matter being taken any further and that he had been told it was dealt with.[98]
  1. [168]
    Requesting participants to provide feedback on the course constitutes reasonable management action. As acknowledged by the Applicant, he had received positive as well as negative feedback from course participants. The form used to collect feedback allowed participants to write freely about their feedback.[99] It is unclear to me how Mr Swann allegedly influenced this feedback or his specific responses to participants after reading the feedback.
  1. [169]
    In my view, there is insufficient evidence to conclude that this allegation occurred as claimed. Mr Carlyle's affidavit did not provide evidence of tailoring feedback or only seeking negative feedback. Mr Marinkovic did not provide any clear details as to the basis for his claim that Mr Swann 'encouraged or influenced negative feedback' against the Applicant or would 'snarl or rebuke' people who provided positive feedback. No details were provided as to who was the subject of this treatment or specific circumstances that were witnessed. There was no evidence of how Mr Swann attempted to elicit particular feedback or words used to rebuke people for providing positive feedback. Mr Marinkovic's evidence that he was snarled at lacked any particularisation, with no evidence provided as to the manner in which this occurred. If this had occurred in the manner alleged, it would be considered unreasonable management action on the basis that it is not reasonable to attempt to influence feedback. However, the evidence with respect to this issue was too vague to form a credible basis in order to determine that it had in fact occurred.

Raising the CSD Trainee dog incident in which a child was bitten

  1. [170]
    The Applicant refers to an incident outlined in the Chronology document in which he submitted an incident report, outlining that a CSD Trainee dog attacked a child during a weekend exercise. Mr Swann stated in the document that the Applicant inappropriately visited and gifted things to the child after the incident.
  1. [171]
    The Applicant states that he was walking the dog with his family and another child, who is a friend of his family, when the dog scratched the boy. The Applicant took the boy home to his parents and gave him a small gift to reward him for this bravery.
  1. [172]
    As noted by the Applicant, he immediately contacted Mr Swann to explain what occurred and provided him with a written report. The report was never challenged and no allegations of wrong-doing have ever been made to the Applicant. This incident is not evidence that the Applicant was bullied by Mr Swann as the Applicant was not subject to any consequences following the incident. Nothing happened to the Applicant after the report was provided. Mr Swann's personal view may have been that the gift was inappropriate, however, this was not conveyed to anyone until the conciliation conference in this matter and so is not evidence of unreasonable management action. 

Not telling the Applicant that he would be commencing on a PIP in a conversation about his performance on 6 January 2020

  1. [173]
    The Applicant stated in his affidavit that during a conversation on 6 January 2020, Mr Swann told him that he wanted to meet with the Applicant and HR on Mr Swann's return from leave to discuss performance indicators. The Applicant stated that a PIP was not mentioned.[100]
  1. [174]
    The Applicant stated that when he complained that he was being singled out and that a formal process was not required, Mr Swann reassured him that he was sure the Applicant would meet any criteria set.[101]
  1. [175]
    In Mr Swann's affidavit, he stated that he sought approval from Mr Butler to commence a PIP and made contact with Ms Devlin from HR to assist with the process. Mr Swann states he and Ms Devlin complied with the Employee Performance Management Guidelines ('EPM Guidelines') at all times and decided not to implement the PIP until the new year.[102]
  1. [176]
    Mr Swann's evidence is that he met with the Applicant on 6 January 2020 and informed him they would have a discussion about the objectives for the next GP course when Mr Swann returned from leave, that Ms Devlin would be present, and it was a formal PIP. Mr Swann states that he explained to the Applicant at that time that a PIP is not a punitive process but one designed to raise performance.[103]
  1. [177]
    Mr Swann's evidence was that the Applicant was informed that when he returned from leave that there would be a discussion with Ms Devlin about objectives as part of a formal PIP. The Applicant's evidence was that Mr Swann did not tell him about the proposed PIP, however, he conceded that the words 'criteria' and 'performance indicators' may have been used. On balance, it would seem likely that the Applicant was told that a PIP was to be discussed, particularly given his evidence that he told Mr Swann that he did not believe a formal process was required. This statement would not have been necessary unless a formal process had been mentioned. I am satisfied that Mr Swann did advise the Applicant that he would be commencing on a PIP at the meeting on 6 January 2020. This was reasonable management action taken in a reasonable manner.

Loading the Applicant up with additional duties when acting as Unit Manager and then using deficiencies in his performance as the basis to place the Applicant on a PIP; using erroneous complaints as a basis to place the Applicant on a PIP including the provision of incorrect claims to both Mr Butler and Ms Devlin.

  1. [178]
    The Applicant claims that Mr Swann deliberately 'loaded' him up with tasks while he was acting up in Mr Swann's role for two weeks, requiring him to complete three full time roles, doing his own job which involved running a course, Mr Swann's job and the dog development role. The Applicant claims this resulted in the deficiencies later identified by Mr Swann and which were used to justify the proposed PIP, even though he was only acting for a period of two weeks.
  1. [179]
    Mr Butler gave evidence that it was his decision to offer the Applicant higher duties by acting in Mr Swann’s role for two weeks.[104]
  1. [180]
    Mr Swann accepted in oral evidence that the Applicant was doing his own role, which included the dog development duties and running a course, and Mr Swann's role.[105] Mr Scott was no longer with the unit and those responsibilities fell back to the Applicant.
  1. [181]
    In his affidavit, Mr Swann states that the Applicant took leave in 2019 during the GP course and Mr Swann took over running the course at weeks 9 and 10.[106] Mr Swann states that he noted significant deficiencies across exercises and handlers which were ultimately overcome by the efforts of the handlers on the course. One handler had to have his course extended to meet the standard required.[107]
  1. [182]
    Mr Swann wrote to Mr Butler about the issue and Mr Butler approved the proposed PIP with the assistance of Ms Devlin. Mr Butler gave evidence that he had no reason to doubt the information provided to him by Mr Swann.[108] Ms Devlin confirmed that she was asked to assist Mr Swann with the PIP process.
  1. [183]
    Ms Devlin stated in her affidavit that the decision to move to a formal PIP was based on a review of ongoing and persistent performance concerns. Ms Devlin states that it is not incumbent upon Mr Swann, as a Manager, to supply the Applicant with a copy of the email dated 4 November 2019 requesting assistance with the PIP, however, the issues raised in that email would have been tabled during the initial meeting of 6 February 2020.
  1. [184]
    Ms Devlin's affidavit stated that she reviewed the material supplied to her from Mr Swann and was satisfied that Mr Swann had taken 'sufficient preliminary action to address Mr Greenall's performance and that continuing with the current approach (informal discussions) was unlikely to result in improved performance'.[109]
  1. [185]
    Mr Swann advised the Applicant on 6 January 2020, prior to going on leave, that a meeting will be held to discuss performance when he returned. On 5 February 2020, the Applicant was given 24 hours' notice to attend a meeting with respect to his performance. In her affidavit, Ms Devlin states that the purpose of this meeting was to discuss the specific concerns which were raised in Mr Swann's email and to give the Applicant an opportunity to contribute to the discussion about his performance. The Applicant did not attend this meeting.
  1. [186]
    In cross-examination, it was put to Ms Devlin that the first two steps of the flowchart of the EPM Guidelines were not followed.[110]
  1. [187]
    Ms Devlin stated that the cornerstone of the process is regular and constructive feedback and that she was satisfied that this had occurred. Ms Devlin confirmed that she did not meet or discuss anything with the Applicant but accepted that Mr Swann had done so. When pressed as to why the performance effectiveness process had not been conducted prior to the commencement of the PIP, Ms Devlin stated:

[The performance effectiveness process] which talks about having regular feedback, providing regular performance discussions. It doesn't mandate that it has to be in a particular format. It can be around the environment with which the employee works. And I was confident based on all the information that Mr Swann gave me on the regular discussions and the other information that the part of the process had been done.[111]

  1. [188]
    The Applicant submits that Ms Devlin gave oral evidence inconsistent with her affidavit and when cross-examined on the matter, denied the inconsistencies.[112] The Applicant submits that Ms Devlin accepted that no adverse findings had been made against the Applicant with respect to the alleged unauthorised escort of a canine vendor into the AGCC which was detailed in the Chronology document, however, stated that such conduct remained a performance issue because it demonstrated a pattern of behaviour.[113]
  1. [189]
    The Applicant submits that a further example of Ms Devlin's defence of Mr Swann's unreasonable behaviour was Ms Devlin's claim that she relied on data dating back to 2016 as the basis for placing the Applicant on a PIP. The Applicant submits that even Mr Swann accepts that the Applicant was suffering mental health issues in 2016 to 2017 and that those matters were managed as personal health issues and not performance management issues.
  1. [190]
    The Applicant submits that Ms Devlin showed a lack of knowledge of the EPM Guidelines and that during cross-examination, she endeavoured to explain her conduct by providing her interpretation of the EPM Guidelines and informing the Commission that 'they are only guidelines'.[114]
  1. [191]
    The Applicant submits that the Respondents' decision to place him on a PIP was in breach of clause 5.2 of the EPM Guidelines which sets out a requirement for QCS to commit to a Performance Effectiveness Plan ('PEP') before initiating a PIP and clause 5.2.1, which requires the identification of issues such as workplace conflict, lack of systems/procedures, and ineffective supervision which may be contributing to or causing the problem.
  1. [192]
    The Respondents state that Ms Devlin frankly described how she reviewed the reports of Mr Swann regarding conduct issues around the Applicant in addition to other documents including disciplinary reports, reports from other officers and complaints about the Applicant's behaviour.[115]
  1. [193]
    The Respondents submit that Ms Devlin is entitled to rely upon reports from an employee's supervisor in relation to an employee's conduct and she also took the time to undertake a comprehensive review of the materials to ensure she was not just relying on Mr Swann's report.
  1. [194]
    The Respondents submit that Ms Devlin's oral evidence that she considered other material is not a contradiction of her evidence at [21] of her affidavit. This paragraph states that Ms Devlin and Mr Swann agreed that the PIP document itself would outline expectations only in relation to the next dog training course. Ms Devlin confirmed this in her evidence.[116] The Respondents submit that the email to the Applicant dated 5 February 2020 is consistent with the evidence that the PIP expectations of the Applicant would be in respect of the next training course. That evidence does not suggest they were precluded from having a performance discussion with the Applicant around other issues.
  1. [195]
    The Respondents submit that the PIP was not put in place on the basis of a wide range of unsubstantiated incidents, rather, Ms Devlin simply did her job by reviewing all the material available to her and conducting a comprehensive review of his performance and conduct history with the employer. The Respondents submit that Mr Swann and Ms Devlin are entitled to discuss performance issues with an employee, and then set a PIP that focusses on the training course. The training courses are a fundamental part of the Applicant's job.
  1. [196]
    The Respondents submit that even if Ms Devlin and Mr Swann did in fact consider events or incidents that were ultimately unsubstantiated, there is no unfairness to the Applicant, and  there was sufficient justification to implement a PIP based solely on the Applicant's conduct during the last GP course, that the PIP would have been commenced and the requirements would have remained the same. 
  1. [197]
    The PIP documentation states that the Applicant is being performance managed based on his performance in the previous GP course and the PIP is intended to focus on his performance as a trainer.
  1. [198]
    With respect to the Applicant's submission that Ms Devlin had a lack of knowledge of the EPM Guidelines and that she acted in breach of those EPM Guidelines, the Respondents submit that Ms Devlin's evidence about her application of the EPM Guidelines does not show a deficiency in the process followed. The Respondents submit that the EPM Guidelines state there is a process for employees on probation and Ms Devlin's evidence was that it was her interpretation of the EPM Guidelines that the process relates to employees on probation, and hence she did not apply that process to the Applicant's performance management. The Respondents submit that is not an unreasonable interpretation.
  1. [199]
    I do not accept that the interpretation of EPM Guidelines allows for any part of the process to be ignored on the basis that 'they are only guidelines'. The EPM Guidelines were produced in fulfilment of the agency's obligations to implement employee performance management strategies, systems and processes and should be complied with to ensure transparency and consistency in performance management decisions.
  1. [200]
    The EPM Guidelines outline the following performance management processes:
  • an induction process;
  • a probation process;
  • a performance review and development process;
  • a process for managing unsatisfactory performance and conduct;
  • a process for managing disciplinary action; and
  • a recognition process.
  1. [201]
    Ms Devlin's evidence that she considered that the processes prior to the implementation of a PIP did not apply because the Applicant was not on probation is puzzling. Any reasonable reading of the EPM Guidelines, particularly the process diagram at clause 5.2, makes it clear that a PEP must be progressed as a first option and if not successful, the next option is to progress with a PIP.
  1. [202]
    I note Ms Devlin's evidence that there is no requirement that discussions regarding performance issues must be in accordance with a formal plan prior to commencement of a PIP. This may be accurate, however, there is no evidence in this matter that an informal PEP was in place after consultation with the Applicant as required. Clauses 5.2.1, 5.2.2 and 5.3.1 of the EPM Guidelines outline clearly the processes through which unsatisfactory performance may be addressed before consideration is given to the implementation of a PIP. I am not of the view that these processes have occurred such that I could be satisfied that an informal PEP process had taken place.
  1. [203]
    In my view, the decision to place the Applicant on a PIP following the period during which he was fulfilling three roles was not reasonable. I understand that it is not unusual for employees to take on additional roles whilst co-workers are on leave, however, it is not reasonable to assess an employee's performance as deficient whilst they are balancing this additional workload. If the core part of the Applicant's role, being the training, was found to need improvement, the EPM Guidelines outline processes through which this may be addressed. The decision to place the Applicant on a PIP following deficiencies identified during the relevant period was not reasonable management action and the failure of the Respondents to adhere to the processes outlined in the EPM Guidelines prior to the attempt to implement a PIP demonstrated that this management action as not undertaken in a reasonable manner.

Other evidence

  1. [204]
    A number of witnesses gave evidence that did not touch on the specific issues mentioned above. I will address the evidence of each of these witnesses in turn.

Amanda Altschwager

  1. [205]
    Ms Altschwager gave evidence regarding her experience with the unit. An email from Ms Altschwager to Mr Simon Berg, dated 1 July 2019,[117] outlines her concerns regarding her experiences with QCS and with both the South Australia and Queensland departments. Ms Altschwager's statement traverses a range of concerns regarding the communication between the states and criticisms of the processes involved, including criticism of Mr Swann's training course conducted in South Australia. The statement outlines Ms Altschwager's belief that Mr Swann did not want the Applicant working there, but does not provide any details as to how she came to this belief. Ms Altschwager states 'it was a very tense environment with a lot of bullying tactics being used by senior management',[118] but does not provide any particulars regarding what those bullying tactics may have been. Similarly, Ms Altschwager states that she believed that Mr Swann and Mr Ciccolini were trying to make the Applicant look as though he did not follow correct protocol, however, it is not explained how she came to this belief.
  1. [206]
    Ms Altschwager's evidence was that she was impacted by the confusion at QCS after being told by the Applicant that she may have been able to take the dog Judd but the next day not getting the dog. Ms Altschwager confirmed that she was unaware if the Applicant had the authority to be offering Judd to her at that time.
  1. [207]
    My impression of Ms Altschwager's evidence is that she had a positive impression of the Applicant because she considered him to be helpful and good at his job and does not hold a high opinion of Mr Swann. This evidence confirmed that tension exists within the workplace but does not provide a credible basis to conclude that Mr Swann behaved unreasonably toward the Applicant.

Mark Muharem

  1. [208]
    In Mr Muharem's affidavit, he stated that it was common knowledge that a 'hit list' was established by Mr Swann. Mr Muharem states that the names on the list were not known to him, but that it was widely believed to be all new handlers that joined the Dog Squad after the 1997 mass escape from Sir David Longland's Correctional Centre. Mr Muharem noted that the Applicant was one of the handlers who had joined the Dog Squad after the mass escape, however, did not claim that the Applicant's name was on the so called 'hit list'.
  1. [209]
    Mr Muharem stated in his affidavit that he recalls attending the funeral of a former colleague in 2019 after which he had a conversation with Mr Swann about retiring from his job. He states that Mr Swann stated that whilst he could afford to leave, 'there are a few people I need to sort out before I leave'.[119]
  1. [210]
    Mr Muharem stated that no name was mentioned but that he knew the Applicant was one of the intended targets. Mr Muharem did not give evidence as to how he knew that to be the case.
  1. [211]
    Mr Swann denies making this statement as claimed by Mr Muharem and states that he was with his wife at the funeral and kept the conversation brief because he thought Mr Muharem was going to talk about his dismissal from the public service. Mr Swann denied speaking to Mr Muharem about sorting people out or insinuating that he wanted to terminate anyone's employment.
  1. [212]
    In cross-examination Mr Muharem confirmed that he had not seen an actual list and did not know the names of who was on the list.[120]
  1. [213]
    In the absence of further evidence, I am not of the view that it is likely that Mr Swann would have confided in Mr Muharem, given that they did not appear to have a close relationship. Even if I am wrong in that assessment, the comment alleged to have been made - 'there are a few people I need to sort out before I leave', does not make clear the person being referred to. Whilst workplace rumours such as the existence of a hit list are not uncommon, without further evidence, this testimony cannot be relied upon. On the basis that Mr Muharem confirmed that he had never seen a hit list or knew if the Applicant was on the hit list, I am unable to rely on the evidence of Mr Muharem to conclude that Mr Swann behaved in an unreasonable manner.

Jason Carlyle

  1. [214]
    Mr Carlyle stated in his affidavit that he heard Mr Swann state that the Applicant 'may not be an instructor for much longer'[121] and that Mr Swann made derogatory remarks about the Applicant's recent instructions on a level 1 course.
  1. [215]
    Mr Swann denies that he had discussed the Applicant's employment with Mr Carlyle, stating that he would never have had such discussions with a trainee dog handler such as Mr Carlyle.
  1. [216]
    Mr Carlyle proceeded to state in his affidavit that he has a good working relationship with the Applicant. I am not persuaded that Mr Swann confided in a trainee dog handler about his views on the Applicant. It would seem improbable that Mr Swann, as the Manager of the unit, would engage in conversations of this nature with someone from outside the unit. I therefore do not accept Mr Carlyle's evidence as demonstrating unreasonable behaviour by Mr Swann. 

Further Consideration

  1. [217]
    The relationship between Mr Swann and the Applicant appears to have commenced on a positive note when the Applicant returned to working for QCS. Mr Swann provided a favourable referee report for the Applicant and supported him in obtaining permanency. The Applicant gave evidence that Mr Swann and his wife had supported him through his personal issues in 2016.
  1. [218]
    At some stage, it appears that the relationship between the two men deteriorated. There are allegations that the Applicant made derogatory comments about Mr Swann,[122] and similarly that Mr Swann made derogatory comments about the Applicant.[123] Mr Baumanis states in his affidavit that as a course participant, it was obvious that there was conflict between the Applicant and Mr Swann.[124] There is clearly a poor working relationship between the two parties.
  1. [219]
    The Applicant submits that the issue is one of professional jealousy and that Mr Swann is threatened by the Applicant's more modern training techniques. The Respondents submit that the Applicant is subject to the direction of Mr Swann and QCS policies, irrespective of whether his disregard for Mr Swann is due to personal or professional reasons. The Respondents suggest that the Applicant has made this application to avoid a formal performance improvement process.
  1. [220]
    It is clear that there are employees within QCS that support the Applicant and respect his abilities as a trainer. In Mr Halliday's affidavit, he speaks highly of the Applicant's abilities as a trainer. Mr Halliday states:

The Applicant did all that was within his power to ensure I received a GP dog that was up to standard and could complete the five-week course successfully and without future issues arising.

The Applicant always provided thorough and constructive direction, he showed skill when instructing, and was always willing to answer all questions or provide further instructions if clarification is required.

The Applicant was always clear and concise with all instructions given.[125]

  1. [221]
    Similarly, in Mr Coleman's affidavit he states that he finds the Applicant to be an 'extremely knowledgeable and talented instructor'. Mr Colemans states:

The training and knowledge I have received from the applicant whilst he has been in his position is of some of [sic] highest standard I have received in my time as a dog handler.

The applicant's principal objective in any training event is always achieving the highest standards for the team involved.[126]

  1. [222]
    Notwithstanding the comments above, it is important to note that this matter is not a contest between which party has the most respect or which party is considered to be the most competent at their job. It is a consideration of whether the alleged actions of Mr Swann are substantiated and if so whether the substantiated allegations were unreasonable in the circumstances so as to constitute bullying.
  1. [223]
    The Applicant submits that whilst the onus is on the Applicant to establish on the balance of probabilities that he suffered from repeated unreasonable behaviour in his workplace, in the event that not each and every incident contained in the Applicant's affidavit is proven, the case may still be successful by establishing to the requisite standard that some of the alleged workplace bullying occurred. I agree with this submission. Of the matters that I have accepted as occurring in the manner claimed, there are three incidents that, in my view, constitute unreasonable behaviour. I am not of the view, however, that these incidents are of such gravity that they demonstrate repeated unreasonable behaviour so as to constitute bullying.
  1. [224]
    The Applicant refers to the decision of Lander J in Keen v Workers Rehabilitation and Compensation Corporation:[127]

Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration[sic] action was taken in a reasonable manner by the employer.[128]

  1. [225]
    The Respondents rely upon the decision in Bowers v Workcover Queensland ('Bowers')[129] in their submission that some of the matters to which the Applicant refers reflect a 'blemish' on an otherwise good management record. The Applicant's submission attempts to distinguish this case on the basis that the irregularities by management in Bowers were minor and few in number. I do not agree with this submission, with my assessment indicating that only a few of the incidents alleged in this matter were sufficiently serious to be considered unreasonable and that this did not constitute bullying when considered in all of the circumstances.
  1. [226]
    As previously noted, the test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'.[130] There were a number of instances in which Mr Swann's behaviour could have been more appropriate, however, this does not render his conduct unreasonable.
  1. [227]
    I note that management action does not need to be perfect to be considered reasonable. Management action might have been taken in a more reasonable way does not automatically render the action taken unreasonable.[131] As outlined above, some of Mr Swann's actions were unreasonable in my view, however, after examining the total circumstances, I am not satisfied that Mr Swann's actions constitute bullying.
  1. [228]
    The evidence of Dr Brown and Dr Gupta was that the Applicant suffered from a psychological injury to which the major contributing factor was the alleged bullying behaviour by his immediate supervisor in the workplace.[132] Dr Brown opines that the Applicant has presented with symptoms of depression and anxious distress in the context of perceived stressors at work, with those stressors being the Applicant's perception of targeted bullying and persecution by Mr Swann.[133]
  1. [229]
    The medical evidence confirms that the Applicant is suffering from a psychological injury which is due to his perception of bullying and mistreatment by Mr Swann. Although I have not found Mr Swann's conduct to constitute bullying, I am mindful that the relationship between the two parties is significantly strained. The Respondents are entitled to conduct performance management processes for employees in appropriate circumstances on the basis that it is undertaken in a reasonable manner. I would encourage the Respondents to consider the Applicant's health prior to commencing any performance management processes.

Did the behaviour create a risk to the health and safety of the Applicant?

  1. [230]
    This question does not require consideration as there has been no repeated, unreasonable behaviour towards the Applicant.

Was the behaviour other than reasonable management action carried out in a reasonable manner?

  1. [231]
    Although I have found that a number of Mr Swann's actions were not reasonable management action, this was not repeated unreasonable behaviour so as to constitute bullying.

Is there a risk that the Applicant will continue to be bullied in the workplace?

  1. [232]
    I am not persuaded that the Applicant has been bullied in the workplace, and as such there is no requirement for me to consider whether there is a risk he will continue to be bullied in the workplace.

What order, pursuant to s 275 of the Act, should be made?

  1. [233]
    On the basis that I have not found that the Applicant has been bullied in the workplace, there is no order that I can make under s 275 of the Act.
  1. [234]
    Notwithstanding the above, some observations regarding the PIP are appropriate. Although I have not found Mr Swann's conduct to constitute bullying, in my view, the PIP process was commenced in a manner that is demonstrably flawed. The attempt to address the Applicant's performance by placing him on a PIP were inconsistent with the EPM Guidelines and consequently, unfair and unreasonable. I do not consider that this was done intentionally or maliciously, rather, I accept that it was an inaccurate interpretation of the EPM Guidelines. I am unable to make orders with respect to management of the PIP process given that I have not found that bullying has occurred in this matter. However, on the basis that I have found the decision to initiate a PIP to be unreasonable management action, I would encourage the Respondents to consider the statutory obligations and the requirements of the EPM Guidelines with respect to performance management in these particular circumstances.

Conclusion

  1. [235]
    For the reasons outlined above, the impugned behaviour of the Respondents was not repeated, unreasonable behaviour. For that reason, I cannot be satisfied that the Applicant has been bullied in the workplace. It follows that it is unnecessary for me to determine whether QCS is vicariously liable for Mr Swann's conduct.

Order

  1. [236]
    I make the following order:

The Applicant's application for an order to stop bullying is dismissed.

Footnotes

[1] [2021] QIRC 141 ('Welsh').

[2] [2014] FWC 2104 ('Ms SB').

[3] Industrial Relations Act 2016 (Qld) s 8(2)(b).

[4] Bowker v DP World Melbourne Ltd [2014] FWCFB 9227; (2014) 246 IR 138, [51] (Justice Ross, President, Vice President Hatcher, Deputy President Gostencnik, Commissioner Hampton and Commissioner Johns).

[5] Ms SB (n 2) [41].

[6] Ibid [43].

[7] [2015] FWC 774; (2015) 247 IR 274.

[8] Ibid [90]-[91].

[9] Ibid [99].

[10] Ibid [92].

[11] Ms SB (n 2) [44]-[45].

[12] Ms SB (n 2) [47].

[13] Mr Morris was also a CSD Handler who was not called to give evidence at the hearing.

[14] T1-51, LL30-35; T1-53, LL16-18.

[15] T3-22, LL9-29.

[16] Exhibit 1, Affidavit of Darran Greenall filed 24 April 2020, [38] ('Affidavit of Greenall').

[17] The Applicant was previously employed at the AFP.

[18] Final submissions of the Respondents, [88]; Exhibit 13, Affidavit of Alan Swann filed 26 June 2020, [57] ('Affidavit of Swann').

[19] Exhibit 8, Affidavit of Michael Marinkovic filed 24 April 2020, [11] ('Affidavit of Marinkovic').

[20] T2-80, LL5-12.

[21] Exhibit 14, page 4.

[22] Bowers v WorkCover Queensland (2002) 170 QGIG 1.

[23] Ferguson and Commonwealth Bank of Australia [2012] AATA 718; Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16.

[24] Final submissions of the Applicant, [17]; T2-79, L1 – T2-81, L11.

[25] Affidavit of Greenall (n 16) [44].

[26] Affidavit of Swann (n 18) [132].

[27] T1-55, LL20-39.

[28] Affidavit of Greenall (n 16) Attachment 2.

[29] T2-100, LL7-43.

[30] Affidavit of Greenall (n 16) [46].

[31] T1-69, LL4-13.

[32] Exhibit 4, Affidavit of Craig Fox filed 24 April 2020, [10] ('Affidavit of Fox').

[33] T2-22, LL27-28.

[34] T2-97, LL16-22.

[35] T2-91, L39 – T2-92, L2.

[36] T2-97, LL4-14.

[37] Affidavit of Fox (n 32) [15].

[38] T2-92, LL13-23.

[39] Affidavit of Greenall (n 16) [46].

[40] Ibid.

[41] Affidavit of Fox (n 32) [12].

[42] T2-94, LL30-39; T2-93, LL25-28.

[43] T2-23, LL4-5.

[44] Affidavit of Fox (n 32) [13].

[45] Affidavit of Greenall (n 16) [45].

[46] T2-99, LL26-44.

[47] Affidavit of Greenall (n 16) Attachment 2, page 3.

[48] Ibid [46].

[49] Final submissions of the Applicant, [21].

[50] Affidavit of Greenall (n 16) [46].

[51] Affidavit of Swann (n 18) [79].

[52] T2-93, LL21-40.

[53] Affidavit of Swann (n 18) [78].

[54] Ibid [77], [79].

[55] T1-69, LL32-43.

[56] T2-61, LL6-7.

[57] Affidavit of Greenall (n 16) Attachment 10.

[58] Exhibit 3, Affidavit of David Hurikino filed 17 March 2020, [5].

[59] T2-10, L1 – T2-11, L3.

[60] T2-14, LL28-30.

[61] T3-32, LL36-39.

[62] Affidavit of Greenall (n 16) [23]-[24].

[63] Affidavit of Swann (n 18) [108]-[111].

[64] Affidavit of Greenall (n 16) [19].

[65] T1-42, LL17-46.

[66] Affidavit of Greenall (n 16) [20].

[67] Affidavit of Swann (n 18) [47].

[68] Affidavit of Greenall (n 16) Attachment 2.

[69] Ibid [35].

[70] Affidavit of Swann (n 18) [126].

[71] T2-102, LL14-44.

[72] Affidavit of Swann (n 18) AS-28.

[73] Ibid [128].

[74] Affidavit of Greenall (n 16) Attachment 7.

[75] Ibid [39]-[40].

[76] Affidavit of Swann (n 18) AS-16.

[77] T1-67, L37.

[78] T1-67, L45.

[79] Affidavit of Greenall (n 16) [40].

[80] Ibid Attachment 8.

[81] T3-16, LL27-30.

[82] T3-13, LL39-45.

[83] T3-14, LL27-30.

[84] T3-14, LL6-11.

[85] T1-67, LL10-13.

[86] T3-13, LL39-45.

[87] Affidavit of Greenall (n 16) [41].

[88] Affidavit of Swann (n 18) [71].

[89] Affidavit of Greenall (n 16) [42]-[43].

[90] Affidavit of Swann (n 18) [72], [75].

[91] Comcare v Martinez (No.2) [2013] FCA 439, [73], [76].

[92] Affidavit of Greenall (n 16) [25].

[93] Affidavit of Swann (n 18) [116].

[94] T1-27, L1 – T1-28, L9.

[95] Affidavit of Greenall (n 16) [13], [18].

[96] Affidavit of Marinkovic (n 19) [8].

[97] Affidavit of Swann (n 18) [197]; T2-106, LL22-37.

[98] T2-49, L38 – T2-50, L40.

[99] T1-49, LL1-13, LL43-47.

[100] Affidavit of Greenall (n 16) [53].

[101] Ibid.

[102] Affidavit of Swann (n 18) [90]-[92].

[103] Ibid [93].

[104] T3-52, LL16-19.

[105] T3-18, LL2-46.

[106] Affidavit of Swann (n 18) [85]-[89].

[107] T3-19, LL1-16.

[108] T3-54, LL22-29.

[109] Exhibit 17, Affidavit of Tammy Devlin filed 29 May 2020, [36].

[110] T3-65, L40 – T3-66, L25.

[111] T3-68, LL29-33.

[112] Final submissions of the Applicant, [29]; T3-56, L18 – T3-57, L.42.

[113] Final submissions of the Applicant, [29]; T3-59, LL5-26.

[114] Final submissions of the Applicant, [31].

[115] Final submissions of the Respondents, [109].

[116] Ibid [110].

[117] Affidavit of Greenall (n 16) Attachment 11.

[118] Ibid.

[119] Exhibit 7, Affidavit of Mark Muharem filed 17 March 2020, [20].

[120] T2-39, L43 – T2-40, L15.

[121] Exhibit 5, Affidavit of Jason Carlyle filed 17 March 2020, [5] ('Affidavit of Carlyle').

[122] As indicated in the evaluation note of Timothy Pratt.

[123] As indicated in the Affidavit of Carlyle.

[124] Affidavit of Peter Baumanis filed 17 March 2020, [29].

[125] Exhibit 6, Affidavit of John Halliday filed 17 March 2020, [10]-[12].

[126] Affidavit of Ryan Coleman filed 17 March 2020, [11]-[12].

[127] (1998) 71 SASR 42.

[128] Ibid 47-8.

[129] (2002) 170 QGIG 1.

[130] Ms SB (n 2).

[131] Ferguson and Commonwealth Bank of Australia [2012] AATA 718.

[132] Exhibit 11, Affidavit of Daniel Brown filed 24 April 2020; Exhibit 12, Report by Dr Daniel Brown to Dr Anna Zietal dated 28 February 2020; Exhibit 15, Report of Dr Ankur Gupta 25 April 2020.

[133] Exhibit 12, Report by Dr Daniel Brown to Dr Anna Zietal dated 28 February 2020.

Close

Editorial Notes

  • Published Case Name:

    Greenall v State of Queensland (Queensland Corrective Services)

  • Shortened Case Name:

    Greenall v State of Queensland (Queensland Corrective Services)

  • MNC:

    [2021] QIRC 264

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    30 Jul 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bowers v WorkCover Queensland (2002) 170 QGIG 1
3 citations
Jump To
Cite 1 - (2002) 170 QGIG 1
Cite 2 - (2002) 170 QGIG 1
Cite 3 - (2002) 170 QGIG 1
Bowker v DP World Melbourne Ltd [2014] FWCFB 9227
2 citations
Jump To
Cite 1 - [2014] FWCFB 9227
Cite 2 - [2014] FWCFB 9227
Bowker v DP World Melbourne Ltd (2014) 246 IR 138
2 citations
Jump To
Cite 1 - (2014) 246 IR 138
Cite 2 - (2014) 246 IR 138
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16
2 citations
Jump To
Cite 1 - [2004] FCAFC 16
Cite 2 - [2004] FCAFC 16
Comcare v Martinez (No.2) [2013] FCA 439
2 citations
Jump To
Cite 1 - [2013] FCA 439
Cite 2 - [2013] FCA 439
Ferguson and Commonwealth Bank of Australia [2012] AATA 718
3 citations
Jump To
Cite 1 - [2012] AATA 718
Cite 2 - [2012] AATA 718
Cite 3 - [2012] AATA 718
Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42
3 citations
Jump To
Cite 1 - (1998) 71 SASR 42
Cite 2 - (1998) 71 SASR 42
Cite 3 - (1998) 71 SASR 42
Mac v Bank of Queensland Ltd (2015) 247 IR 274
5 citations
Jump To
Cite 1 - (2015) 247 IR 274
Cite 2 - (2015) 247 IR 274
Cite 3 - (2015) 247 IR 274
Cite 4 - (2015) 247 IR 274
Cite 5 - (2015) 247 IR 274
Mac v Bank of Queensland Ltd & Others [2015] FWC 774
2 citations
Jump To
Cite 1 - [2015] FWC 774
Cite 2 - [2015] FWC 774
Re SB [2014] FWC 2104
6 citations
Jump To
Cite 1 - [2014] FWC 2104
Cite 2 - [2014] FWC 2104
Cite 3 - [2014] FWC 2104
Cite 4 - [2014] FWC 2104
Cite 5 - [2014] FWC 2104
Cite 6 - [2014] FWC 2104
Welsh v Logan City Council [2021] QIRC 141
2 citations
Jump To
Cite 1 - [2021] QIRC 141
Cite 2 - [2021] QIRC 141

Cases Citing

Case NameFull CitationFrequency
Greenall v State of Queensland (Queensland Corrective Services) [2021] ICQ 192 citations
Watton v TAFE Queensland (No. 3) [2023] QIRC 3031 citation
1

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