[2013] FWCFB 762 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
SENIOR DEPUTY PRESIDENT ACTON |
|
Appeal against decision [[2012] FWA 7680] and order [PR529179] of Commissioner Bissett on 13 September 2012 in matter number U2012/6941 - Fair Work Act 2009 (Cth), ss.387(a), 390(3)(a), 390(3)(b), 392(1), 392(2)(d), 392(2)(e), 392(2)(f), 392(2)(g), 392(3) and 394(1) - Application for unfair dismissal remedy - Appeal upheld - No valid reason - Remedy - Reinstatement inappropriate - Compensation appropriate - Remuneration earned - Mitigation evidence - Workers’ compensation payments - Misconduct deduction - Compensation amount.
Introduction
[1] This matter concerns an appeal by Ms Mary Read against a decision 1 and order2 of Commissioner Bissett in respect of an unfair dismissal remedy application made to Fair Work Australia (FWA) by Ms Read against Gordon Square Child Care Centre Inc T/A Gordon Square Child Care Centre (Gordon Square). FWA was renamed the Fair Work Commission (FWC) on 1 January 2013.
[2] In the decision the Commissioner found that Ms Read was protected from unfair dismissal; had been dismissed; in respect of the Small Business Fair Dismissal Code (the Code), Gordon Square was not a small business at the relevant time and, in any instance, had not complied with the Code; and the dismissal was not a case of genuine redundancy.
[3] The Commissioner then turned to consider whether Ms Read’s dismissal by Gordon Square was harsh, unjust or unreasonable. The Commissioner was satisfied the dismissal was not harsh, unjust or unreasonable and dismissed Ms Read’s unfair dismissal remedy application. She subsequently issued an order to that affect.
[4] Ms Read’s appeal centres on the Commissioner’s satisfaction that her dismissal was not harsh, unjust or unreasonable.
Commissioner’s decision on harsh, unjust or unreasonable
[5] In considering whether the dismissal of Ms Read was harsh, unjust or unreasonable the Commissioner first considered whether there was a valid reason for the dismissal related to Ms Read’s capacity or conduct (including its effect on the safety and welfare of other employees).
[6] Earlier in the decision the Commissioner had set out some background relevant to whether there was a valid reason for Ms Read’s dismissal. That background was as follows:
“[2] Ms Read worked for the Respondent for 21 years, for the last 12 years as Director of the Centre.
[3] On 6 March 2012 Ms Read arrived at work at approximately 7.15 am and opened the Centre. At 7.30 am a 3 ½ year old child (Child A) was dropped off by her father. The child was visibly upset. At 7.35 the father spoke to the child as to the time she would be collected that day and then left.
[4] Ms Read was then alone with the child in the infants’ room.
[5] At 7.38 am the phone rang. Ms Read moved from the infants’ room to the reception area. As she approached the reception area, but outside the infants’ room, a second child (Child B) arrived with his father. Ms Read said to Child B words to the effect of ‘I’m glad you are here [Child B] because [Child A] is a bit upset. Perhaps you could cheer her up.’ Ms Read then walked back into the infants’ room with Child B and his father. The father unpacked his child’s belongings and said goodbye.
[6] At about this time another child arrived.” [Endnotes omitted]
[7] Subsequently, in considering whether there was a valid reason, the Commissioner said:
“[87] The conduct relied on by the Respondent is that the Applicant left a child unattended and unsupervised.
[88] The Applicant agrees that she left the child alone in the infants’ room while she went into the reception area to answer the phone and that she did not have the child in her sight for a matter of seconds.
[89] The Centre has a Supervision Policy. The aim of that policy recognises that carers have a duty of care to ensure areas accessible to children are safe and free from hazards. It states that
Carers effectively supervise children by actively watching and attending their environment. Carers should avoid carrying out activities that will draw their attention away from supervision such as reading or speaking on the phone. If carers are required to move away from actively supervising children they should make sure they are replaced by another carer.
[90] The policy then sets out a number of ways active supervision can be achieved including positioning of carers so they can observe the maximum area possible…
[95] Whilst the door from reception to the infants’ room was open I am not satisfied that the Applicant’s conduct in leaving the room to answer the phone was adequate supervision of the child in accordance with the policy of the Centre. It is not that the child was out of sight for only a few seconds that is the critical matter, it is that the Applicant switched her mind to another matter - the phone ringing and potential absence of a staff member from work that day - and that she left the room, that means she was no longer giving her attention to the supervision of the child. Whilst such distraction is a matter particularly addressed in the policy, that the child was in a state of some distress makes the actions of the Applicant of greater concern.
[96] I find that the Applicant did leave a child unsupervised and unattended.
[97] The legislation governing the provision of child care services is the Education and Care Services National Law (Application) Act 2011 (Tas)…
[98] The Education and Care Services National Law Act 2010 (Vic) (the National Law) provides that:
165 Offence to inadequately supervise children
(1) The approved provider of an education and care service must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service.
Penalty: $10 000, in the case of an individual.
$50 000, in any other case.
[99] The Guide to the National Law and National Regulations (the Guide)… provides some assistance in understanding the requirements of the National Law with respect to supervision of children.
[100] The Guide states:
Educator-to-child ratios alone do not determine what is considered adequate supervision.
Supervision is critical to the safety of children. At its most basic level, supervision helps to protect children from hazards or harm that may arise in their play and daily routines. Adequate supervision means that an educator can respond immediately, including when a child is distressed or in a hazardous situation.
Effective supervision also requires educators to be actively involved with children. It is not the intention of this requirement that educators merely ‘stand back and watch’.
Every child should always be monitored actively and diligently. This means knowing where children are at all times. Children of different ages and abilities will need different levels of supervision. In general, the younger children are, the more they may need an adult to be physically present and close by to support and help them.
(my emphasis)
[101] The Supervision Policy of the Centre would appear to accord with what is set out in the Guide.
[102] The actions of the Applicant in removing herself from the room where Child A was on 6 March 2012 to answer the phone meant that she was no longer monitoring the child actively and diligently. As the Applicant admitted, she was thinking about whether or not a staff member was ringing in to say they were ill. Her actions were a breach of the requirements of the National Law as explained in the Guide and a breach of the Centre Policy.
[103] This is a serious issue. By her actions I find that the Applicant failed to provide adequate supervision of the child.
[104] During the hearing the Respondent also made submissions that the Applicant’s employment was terminated because of a series of performance issues.
[105] Many of the issues related to the Applicant’s performance relied on by the Respondent are generalised and are not supported by any evidence. Most relate to events that occurred prior to February 2010 with no evidence of continuing problems of that nature. Some evidence did relate to incidents in August 2011…
[111] As to the incidents of August 2011 raised in the evidence of Ms Bird the incident of 1 August was not put to the Applicant and there is no basis on which I could draw any inference as to the Applicant’s conduct from what Ms Bird observed on 19 August. I therefore do not rely on these two events. The incident of 9 August is that referred to by Mr Taylor and is dealt with below.
[112] I accept the evidence of Mr Taylor of the incident in August 2011 where the Applicant allowed a child to play under the desk. I also accept that there are computer and power cables under the desk. I also accept that Mr Taylor spoke to the Applicant and the matter was resolved without any formal warning being given to the Applicant. Whilst no formal warning was given to the Applicant this does not mean I cannot consider the conduct of the Applicant on that occasion.
[113] I do find that the Applicant allowed at least one child and possibly more to play under the desk where there are computer and power cables whilst she worked at that desk. Such action by the Applicant placed the children at risk of harm.
[114] In considering all of the conduct and capacity issues with respect to the Applicant I find that her conduct in allowing children to play under the desk where there are power and computer leads and her conduct in failing to provide adequate supervision of a child in accordance with the National Law and Guidelines and Centre Policy as occurred on 6 March 2012 provide a valid reason for the termination of the Applicant’s employment.” [Endnote omitted]
[8] The Commissioner then found Ms Read was notified of the reason for her dismissal and given an opportunity to respond in so far as it concerned the 6 March 2012 incident. However, the Commissioner found that Ms Read was not relevantly notified or given an opportunity to respond in respect of the 9 August 2011 incident. The Commissioner also found that Ms Read had a support person at the relevant meetings with Gordon Square.
[9] In respect of whether Ms Read was warned before the dismissal about unsatisfactory performance relating to her dismissal, the Commissioner found that to the extent Ms Read’s dismissal related to her performance she was not satisfactorily warned.
[10] In regard to the degree to which the size of the Gordon Square’s enterprise and its absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures it followed in effecting Ms Read’s dismissal, the Commissioner said:
“[122] The Centre is a small local community child care centre. It is run by a committee of volunteers. There is no doubt that the size of the organisation and that its management of volunteers would impact on the procedure used in effecting the dismissal.
[123] This said however the Committee has, with respect to the events of 6 March 2012, sought to ensure procedural fairness to the Applicant. She received a copy of the complaint; she was given an opportunity to respond; and she attended a meeting with Committee representatives…
[124] Again, the size of the business and its lack of access to specialist human resource expertise would have a detrimental impact on the procedures followed but, given this lack of expertise, the Committee did ensure procedural fairness to the Applicant.”
[11] The Commissioner then turned to consider “any other matters” relevant to whether the dismissal of Ms Read was harsh, unjust or unreasonable. The Commissioner stated the following:
“[125] I have found that the action of the Applicant in leaving the child alone whilst she went to answer the phone provides a valid reason for the termination of her employment. Having said this it should be noted that it is the rostering policies of the Committee that resulted in the Applicant being the sole carer on duty at this time of the day.
[126] The Applicant was also the Director of the Centre and, as such, had responsibilities to ensure adequate staffing for the Centre. Rostering must be adequate in the early morning to ensure that administrative and management tasks can be undertaken and children supervised at the same time. If it is to be the director rostered on first thing in the morning then there needs to be another person rostered so that the director can attend to management and staffing issues if required.
[127] Had another person been rostered from 7.30 am it is most likely that the phone could have been answered without any risk to the child.”
[12] The Commissioner concluded in respect of whether the dismissal was harsh, unjust or unreasonable as follows:
“[132] In this case Child A was not harmed by the actions of the Applicant in failing to properly supervise her. Nor were the children playing under the desk harmed. However, there cannot be half measures when very young children are entrusted into care. The role of carer is one of great responsibility.
[133] Whilst I accept that on 6 March 2012 the Applicant turned away for a very short period of time it was the reason for doing so - that she had switched her mind to other matters and hence was not adequately supervising the child - that is of concern. The Applicant was not, at the time, providing the supervision required. She left the child in a vulnerable position.
[134] The same is true of the incident in August 2011. By allowing children to play near electric and power cables the Applicant left the children in a vulnerable situation.
[135] In both incidents that Applicant was fully in control of the situation. It was her direct action that exposed the children to harm. It could have been avoided.
[136] I accept that the Applicant has a long history of working in the child care sector and that she devotes her own time to helping children in need. Her experience however should have made her even more aware of the need to properly and adequately supervise children.
[137] I have had regard to the environment the Applicant works in. Whilst on the surface the incidents of August 2011 and March 2012 may seem not to be of such consequence, when placed in the context of very young, pre-school aged children who have been placed in the care of the Applicant and the Centre, such failings in supervision take on a level of seriousness that cannot be ignored.
[138] Had the reason for termination not related to child supervision issues I may have reached a different conclusion.
[139] In all of the circumstances I am satisfied that the termination of employment was not harsh, unjust or unreasonable.”
Grounds of appeal
[13] Ms Read submitted the Commissioner erred in finding there was a valid reason for her dismissal by Gordon Square. That finding was substantially premised on a conclusion that Ms Read failed on 6 March 2012 to provide adequate supervision of a child in accordance with the Education and Care Services National Law Act 2010 (Vic) (the National Law), the Guide to the National Law and Regulations (the Guidelines) and Gordon Square Policy (the Centre Policy). 3 Ms Read maintained the conclusion that she so failed was not open to the Commissioner having regard to the relevant content of the National Law, the Guidelines and the Centre Policy and her conduct on the morning of 6 March 2012.
[14] Ms Read submitted such error by the Commissioner warranted the granting of permission to appeal in the public interest. It being in the public interest that the FWC appropriately applies the term “adequate supervision” in the National Law and the Guidelines given the wide application of these instruments across the child care industry.
[15] Ms Read also submitted her dismissal was harsh, unjust or unreasonable, as there was no valid reason for her dismissal and having regard to the impact of the dismissal on her at her stage of life. Accordingly, Ms Read maintained the Commissioner’s decision and order should be quashed, she should be found to have been unfairly dismissed and she should be reinstated with lost remuneration or, in the absence of reinstatement, she should be awarded 26 weeks’ compensation.
[16] Gordon Square opposed the granting of permission to appeal in the public interest and the quashing of the Commissioner’s decision and order because the Commissioner correctly found in the circumstances that Ms Read did not provide adequate supervision and there was a valid reason for her dismissal. In the event the Full Bench granted permission to appeal, quashed the Commissioner’s decision and order and concluded Ms Read’s dismissal was unfair, Gordon Square submitted that compensation is the only appropriate remedy for her.
Consideration of the appeal
[17] The Fair Work Act 2009 (Cth) (FW Act) provides that a person who has been dismissed may apply to the FWC for an order granting a remedy. 4 Under the FW Act, the FWC may order a remedy of reinstatement or the payment of compensation if satisfied the person was protected from unfair dismissal at the time of being dismissed, the person was unfairly dismissed and the person has applied for a remedy.5
[18] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[19] Section 387 of the FW Act sets out the criteria the FWC must take into account in considering whether it is satisfied a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[20] It is apparent from a proper reading of the Commissioner’s decision that she concluded there was a valid reason for the dismissal of Ms Read by Gordon Square related to the combination of her conduct on 9 August 2011 in allowing children to play under a desk where there were power and computer leads and on 6 March 2012 “in failing to provide adequate supervision of a child in accordance with National Law and Guidelines and Centre Policy.” 6
[21] In this regard, we note that the Commissioner found there was “a valid reason” for the dismissal rather than “valid reasons”, and in finding there was a valid reason the Commissioner referred to Ms Read’s conduct on 9 August 2011 and her conduct on 6 March 2012, rather than her conduct on 9 August 2011 or her conduct on 6 March 2012. Further, there would have been no need for the Commissioner to consider Ms Read’s conduct on both occasions in the context of considering whether there was a valid reason for her dismissal if she considered the conduct on either occasion constituted a valid reason. Accordingly, the Commissioner’s comment later on in her decision, when dealing with other relevant matters, that she has “found that the action of the Applicant in leaving the child alone whilst she went to answer the phone provides a valid reason for the termination of her employment” 7 needs to be read in the context of her earlier finding on valid reason.
[22] The National Law to which the Commissioner had regard in respect of Ms Read’s conduct on 6 March 2012 is set out in the Commissioner’s decision as follows:
“[98] The Education and Care Services National Law Act 2010 (Vic) (the National Law) provides that:
165 Offence to inadequately supervise children
(1) The approved provider of an education and care service must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service.
Penalty: $10 000, in the case of an individual.
$50 000, in any other case.”
[23] The “Guide” referred to by the Commissioner in respect of Ms Read’s conduct on 6 March 2012 states the following:
“Adequate supervision …
All children must be adequately supervised at all times that the children are being educated and cared for at the Approved Service.
The Regulatory Authority must be notified within 24 hours if a child:
Educator-to-child ratios alone do not determine what is considered adequate supervision. Supervision is critical to the safety of children. At its most basic level, supervision helps to protect children from hazards or harm that may arise in their play and daily routines. Adequate supervision means that an educator can respond immediately, including when a child is distressed or in a hazardous situation. Effective supervision also requires educators to be actively involved with children. It is not the intention of this requirement that educators merely ‘stand back and watch’. Every child should always be monitored actively and diligently. This means knowing where children are at all times. Children of different ages and abilities will need different levels of supervision. In general, the younger children are, the more they may need an adult to be physically present and close by to support and help them. For example, in a Centre-based service for young children, adequate supervision might mean that the children remain in close proximity to the adult who is supervising them. With babies and toddlers who are sleeping, educators need to be able to see and hear the children. With preschool age children, the program may include experiences in both indoor and outdoor environments and it is important that the educators supervise the children in both these environments. For school age children, educators should know where each child is and be in a position to respond if necessary. In a Family day care service, some children may be playing in different parts of the family day care residence or venue and the educator will need to consider how these children will be supervised. The adequacy of supervision should be determined by a range of factors, including: • number, ages and abilities of children • number and positioning of educators • each child’s current activity • areas where children are playing, in particular the visibility and accessibility of these area • risks in the environment and experiences provided to children • the educators’ knowledge of each child and each group of children • the experience, knowledge and skill of each educator. At times a service may need to provide additional educators to adequately supervise and support children. For example, at the beginning of the year when a number of children are transitioning to new rooms, a service may need to roster educators in excess of minimum ratios. This could assist educators to respond to children’s needs and foster children’s sense of security and belonging. Adequate supervision requires teamwork and good communication among staff. For example, educators should let their colleagues know if they need to leave the area for any reason such as to get a resource from another area, or to use the bathroom. Educators should also develop a handover routine when changing shifts. This might include implementing strategies such as a diary or communication book.” 8 |
[24] The “Centre Policy” to which the Commissioner refers in respect of Ms Read’s conduct on 6 March 2012 relevantly states the following:
“Supervision Policy
AIM:
Children need safe, secure child care environments which are effectively supervised. Carers at Gordon Square Early Learning Centre have a duty of care to ensure all areas accessible to children are safe, free from hazards, and there are sufficient carers to oversee the children’s activities…
Carers effectively supervisor children by actively watching and attending their environment. Carers should avoid carrying out activities that will draw their attention away from supervision such as reading or speaking on the phone. If carers are required to move away from actively supervising children they should make sure they are replaced by another carer.
STRATEGY:
Active supervision of children can be achieved in the following ways:
Supervision is not just watching the children. Carers can improve the environment for children and use a variety of techniques to ensure effective supervision…
Ensuring Consistent Supervision by Carers
Staff rosters and routines are designed to maximize the consistency of supervision of children by ensuring that:
[25] Ms Read gave evidence that when the child arrived with her father at 7.30 am on 6 March 2012 the child was in an extremely unhappy state and had to be carried in by her father. The child was crying and clearly distressed by something. The father left after five minutes saying to the child that the mother would pick her up early and take her to swimming lessons. The child was still crying when the father left. Ms Read’s evidence was that she tried to get the child involved in some activities and also got some books out for her. However, the child just stood with her head down, crying and Ms Read “felt it was best to leave her to come out of things in her own time … a practice previously used with [the child] and … suggested … by her mother.” 10 Ms Read’s evidence was that she then busied herself around the infant’s room getting things out. At around 7.38 am the telephone rang and rang for some time. She thought it may have been another staff member telephoning to say she was sick, so she moved from the infants’ room to the reception area but as she approached the telephone it stopped ringing and she turned to go back to the infants’ room.
[26] Importantly, Ms Read’s evidence was that she had the child out of her sight for no more than a few seconds and could still hear the child crying. There was also uncontradicted evidence that the child was standing in the middle of the infants’ room at the time. Further, a floor plan of the Gordon Square child care centre shows the distance between the middle of the infants’ room and the reception area is some five metres.
[27] Of Ms Read’s actions on 6 March 2012, the Commissioner says:
“[95] Whilst the door from reception to the infants’ room was open I am not satisfied that the Applicant’s conduct in leaving the room to answer the phone was adequate supervision of the child in accordance with the policy of the Centre. It is not that the child was out of sight for only a few seconds that is the critical matter, it is that the Applicant switched her mind to another matter - the phone ringing and potential absence of a staff member from work that day - and that she left the room, that means she was no longer giving her attention to the supervision of the child. Whilst such distraction is a matter particularly addressed in the policy, that the child was in a state of some distress makes the actions of the Applicant of greater concern.
[96] I find that the Applicant did leave a child unsupervised and unattended.”
[28] The Commissioner then goes on to cite relevant parts of the National Law and the Guidelines and refers to the Centre Policy. She subsequently states:
“[102] The actions of the Applicant in removing herself from the room where Child A was on 6 March 2012 to answer the phone meant that she was no longer monitoring the child actively and diligently. As the Applicant admitted, she was thinking about whether or not a staff member was ringing in to say they were ill. Her actions were a breach of the requirements of the National Law as explained in the Guide and a breach of the Centre Policy.
[103] This is a serious issue. By her actions I find that the Applicant failed to provide adequate supervision of the child.”
[29] As we have earlier set out, the Commissioner goes on to find that Ms Read’s conduct in failing to provide adequate supervision of a child in accordance with the National Law, the Guidelines and Centre Policy as occurred on 6 March 2012 provided, in part, a valid reason for her dismissal by Gordon Square.
[30] We think, however, that the Commissioner’s finding that Ms Read failed to provide adequate supervision of a child in accordance with the National Law, the Guidelines and Centre Policy on 6 March 2012 was affected by error.
[31] It is apparent that critical to the finding that Ms Read failed to provide adequate supervision of a child in accordance with the National Law, the Guidelines and Centre Policy was the Commissioner’s finding that on 6 March 2012 Ms Read left the child unsupervised and unattended. This finding that Ms Read left the child unsupervised and unattended followed from her earlier finding that Ms Read “switched her mind to another matter - the phone ringing and potential absence of a staff member from work that day - and that she left the room, that means she was no longer giving her attention to the supervision of the child” whilst “the child was in a state of some distress”. The finding that Ms Read “switched her mind to another matter” and “was no longer giving her attention to the supervision of the child” were inferences made by the Commissioner.
[32] We do not think those inferences were available on the evidence. While there was evidence to the effect that Ms Read knew the telephone was ringing, thought it may have been a staff member ringing in ill and left the infants’ room to answer the telephone, we do not think it follows that she had switched her mind to another matter and was no longer giving her attention to the supervision of the child. This is particularly so when the evidence was that the child was only five metres away, was out of her sight for no more than a couple of seconds and she could hear the child crying. Further, the Centre Policy on Supervision deals specifically with telephone calls and provides that carers “should” avoid speaking on the telephone, not “must” avoid speaking on the telephone.
[33] Also critical to the Commissioner’s finding that Ms Read failed to provide adequate supervision of a child in accordance with the National Law, the Guidelines and Centre Policy was her finding that Ms Read’s actions on 6 March 2012 meant she was no longer monitoring the child actively and diligently. The actions the Commissioner identified in that regard were Ms Read removing herself from the room where the child was in order to answer the telephone and thinking about whether or not a staff member was ringing in to say they were ill. In circumstances where during those actions Ms Read was no more than five metres away from the child when she left the room, could still hear the child crying and had her eyes off the child for no more than a few seconds and where the Centre Policy does not prohibit speaking on the telephone while supervising a child, we do not think it was open to the Commissioner to find that by the actions Ms Read was no longer monitoring the child actively and diligently.
[34] Since the Commissioner’s finding that Ms Read failed to provide adequate supervision of a child in accordance with the National Law, the Guidelines and Centre Policy was affected by error, the Commissioner’s finding there was a valid reason for Ms Read’s dismissal was affected by error. Thereby, the Commissioner’s conclusion that Ms Read’s dismissal was not harsh, unjust or unreasonable and her decision and order to dismiss Ms Read’s unfair dismissal remedy application were affected by error.
[35] In exercising her discretion therefore, the Commissioner made errors of the kind described in House v The King, 11 including significant errors of fact, manifesting an injustice and concerning the proper application of the National Law and the Guidelines affecting the child care industry. In the circumstances, we consider it is in the public interest to grant permission to appeal in this matter. We do so. We will turn to deal with Ms Read’s unfair dismissal remedy application.
Ms Read’s unfair dismissal remedy application
[36] Ms Read’s application for an unfair dismissal remedy was made under s.394 of the FW Act within 14 days of her dismissal by Gordon Square taking effect.
[37] We are satisfied Ms Read was protected from unfair dismissal at the time she was dismissed. There was no issue between the parties that Ms Read was a national system employee of Gordon Square which is a national system employer. Nor was there any dispute that Ms Read had completed a period of employment with Gordon Square of at least the minimum employment period. She was employed by Gordon Square for 21 years. We think it is likely that Ms Read was covered by a modern award. In any instance, however, the sum of Ms Read’s annual rate of earnings, and such other amounts worked out in relation to her in accordance with the regulations, was less than the high income threshold.
[38] We are also satisfied that Ms Read was dismissed by Gordon Square with her employment being terminated on their initiative and that her dismissal was not a case of genuine redundancy. Again there being no issue between the parties on such matters. Further we are satisfied Ms Read’s dismissal was not consistent with the Small Business Fair Dismissal Code (the Code). Immediately before the time of her dismissal, Gordon Square was not a small business employer as it had 15 employees, 12 none of whom were evidenced as being the type of employees excluded from being counted as relevant employees in that regard.13 Further, Gordon Square did not comply with the Code in relation to Ms Read’s dismissal.
Harsh, unjust or unreasonable
[39] We deal then with whether Ms Read’s dismissal was harsh, unjust or unreasonable. We earlier set out the matters in s.387 of the FW Act that the FWC must take into account in considering whether it is satisfied a dismissal was harsh, unjust or unreasonable. We will consider them in sequence.
(i) Valid reason (s.387(a)
[40] We are not persuaded there was a valid reason for Ms Read’s dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees).
[41] The letter of 30 March 2012 from Gordon Square to Ms Read terminating her employment stated the following:
“RE: TERMINATION OF YOUR EMPLOYMENT
This letter is to confirm as stated in our meeting on 28/03/2012 that your employment has been terminated with immediate effect for reason of serious misconduct.
As you are aware, Gordon Square Child Care Centre Inc investigated the complaint received by a client on 12/03/2012, which alleged that you inadequately supervised a child within the centre and that you did not meet the supervision requirements that every child should always be supervised actively and diligently. Although you denied any such wrongdoing in your written response on 15/03/2012, during our meeting on 20/03/2012 you admitted that you had left the child alone in the room to answer the phone, and that you believed it was best to leave the child to settle herself. You also confirmed that you did not give the child breakfast that morning, as is usual practice.
Furthermore, your obligations concerning the supervision of children have previously been discussed with you in August 2011 and as the Director you are aware of the licensing requirements of a child care centre.
We met with you a second time on 28/03/2012 to provide you with a second opportunity to put forward any additional information for Gordon Square Child Care Centre Inc to consider prior to concluding our investigation, which you declined.
Gordon Square Child Care Centre Inc has carefully evaluated and considered the material presented during the investigation, and your response, and has come to the conclusion that your actions were unacceptable in that you left the child unattended and unsupervised in the child care centre which constitutes a serious breach of your responsibility for the centre. This decision has also been based on consultation with the Child Care Unit. Your actions could have serious implications for the organisation including the reputation of the child care centre and placed a child at risk of harm. As we operate a child care centre, the safety of the children must be our first priority. Accordingly, Gordon Square Child Care Centre Inc considers your actions constitute serious misconduct warranting summary dismissal.” 14
[42] We have earlier set out the conduct of Ms Read on 6 March 2012 that Gordon Square considered was serious misconduct warranting Ms Read’s dismissal. We are not persuaded that conduct constituted a breach of the National Law, the Guidelines, the Centre Policy or leaving the child unattended or unsupervised or a breach of Ms Read’s responsibilities. Nor are we persuaded on the evidence that Ms Read should have given the child breakfast on the morning of 6 March 2012. Ms Read’s uncontradicted evidence was that the child’s father had not mentioned or indicated that the child had not had breakfast when he left the child at Gordon Square. In any instance, by around 8.00 am on the morning of 6 March 2012 two other staff members had arrived for work at Gordon Square allowing Ms Read to attend to other duties. One of them subsequently asked Ms Read about whether the child’s father had said anything about the child’s breakfast and Ms Read replied he had not but the child was very upset when she arrived and would not have been able to eat anything at that stage. We do not think Ms Read’s conduct on 6 March 2012 placed a child at risk of harm or could have had serious implications for Gordon Square, including their reputation. There was no evidence given by the “Child Care Unit” referred to in the letter of termination of employment of 30 March 2012. In the circumstances, we are not persuaded Ms Read’s conduct on 6 March 2012 constituted a valid reason for her dismissal.
[43] Nor are we persuaded Ms Read’s conduct on 9 August 2011 of allowing a child or children to play under an office desk at Gordon Square where there were computer and power cables constituted a valid reason for her dismissal. The incident occurred many months before her dismissal and was resolved by Ms Read giving an apology and committing not to let it happen again.
[44] For the reasons given by the Commissioner 15 we are also not persuaded the series of performance issues or other conduct of Ms Read raised by Gordon Square during the hearing at first instance as constituting a valid reason for Ms Read’s dismissal were a valid reason within the meaning of s.387(a) of the FW Act.
[45] There are no other capacity or conduct issues relating to Ms Read that we consider constituted a valid reason for her dismissal by Gordon Square.
(ii) Notification and opportunity to respond (s.387(b) and (c))
[46] Ms Read was notified of the reason for her dismissal by Gordon Square and given an opportunity to respond in so far as it related to the incident involving her on 6 March 2012.
[47] Ms Read was not notified of the other reasons advanced by Gordon Square in the proceedings at first instance as reasons for her dismissal or given an opportunity to respond to them as required in accordance with ss.387(b) and (c) of the FW Act.
[48] However, we have found there was no relevant valid reason for Ms Read’s dismissal by Gordon Square. In Chubb Security Australia Pty Ltd v Thomas, 16 a Full Bench of the Australian Industrial Relations Commission (AIRC) said in respect of s.170CG of the pre-reform Workplace Relations Act 2009 (Cth) (WR Act), as the WR Act was prior to the Work Choices amendments to it:
“[41] Further, it is not, we think, possible to have regard to s.170CG(3)(b) until a finding has been made with regard to s.170CG(3)(a). Section 170CG(3)(b) refers to ‘that reason’; that is ‘a valid reason’, being the term used in s.170CG(3)(a). If there is no valid reason, s.170CG(3)(b) has no application. Neither, we think, has s.170CG(3)(c).”
[49] Sections 170CG(3)(a) to (c) of the pre-reform WR Act were relevantly similar to ss.387(a) to (c) of the FW Act. We respectfully agree with the Full Bench.
(iii) Support person (s.387(d))
[50] Ms Read had a support person present to assist at the discussions with Gordon Square relating to her dismissal.
(iv) Warning about unsatisfactory performance (s.387(e))
[51] In Annetta v Ansett Australia Ltd, 17 a Full Bench of the AIRC said in respect of s.170CG(3)(d) of the pre-reform WR Act, which is relevantly similar to s.387(e) of the FW Act:
“[16] It is clear that s.170CG(3)(d) will not always be relevant but that in cases where it is it must be treated as a matter of significance in the decision-making process. Is s.170CG(3)(d) relevant in this case? We think not. In approaching the construction of the term ‘unsatisfactory performance’ it may be significant that in describing a valid reason s.170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s.170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by paragraph (d) itself is whether the appellant's employment was terminated for unsatisfactory performance. While in a limited sense it was, because the misconduct was constituted by a refusal to perform work, we do not think that the conduct is unsatisfactory performance within the meaning of the paragraph. The paragraph is intended to refer to the level at which the employee renders performance including factors such as diligence, quality, care taken and so on. While there might be some overlap between the concept of unsatisfactory performance and the concept of misconduct, for example in relation to neglect of duty or poor timekeeping, misconduct of the kind which occurred in this case is in a different category.”
[52] We respectfully agree with the Full Bench.
[53] In Fastidia Pty Ltd v Goodwin, 18 a Full Bench of the AIRC said of s.170CG(3)(d) of the pre-reform WR Act:
“[43] In the context of s.170CG(3)(d) we think that a warning must:
- identify the relevant aspect of the employee's performance which is of concern to the employer; and
- make it clear that the employee's employment is at risk unless the performance issue identified is addressed.
[44] In relation to the latter requirement, a mere exhortation for the employee to improve his or her performance would not be sufficient. We also note that we accept that these criterion are to be applied in a practical and commonsense way taking into account the employment context.”
[54] We again respectfully agree with the Full Bench.
[55] To the extent Ms Read’s dismissal related to unsatisfactory work performance we are not satisfied she was appropriately warned about that unsatisfactory work performance before she was dismissed. It was not made clear to her that her employment was at risk unless the performance issues identified were addressed.
(v) Size of employer’s enterprise and absence of dedicated human resource management specialists or expertise (ss.387(f) and (g))
[56] The Commissioner found that Gordon Square is a small child care centre whose committee of management consists of volunteers and it has no dedicated human resource management specialists or expertise. We concur with those findings. We are satisfied the size of Gordon Square’s enterprise and its absence of dedicated human resource management specialists or expertise detrimentally impacted on the procedures it followed in effecting Ms Read’s dismissal.
(vi) Any other matters (s.387(h))
There are no other matters that we consider are relevant.
(vii) Conclusion on harsh, unjust or unreasonable
[57] We are satisfied Ms Read’s dismissal by Gordon Square was harsh, unjust or unreasonable. We have come to this view on the basis that we consider the fact there was no valid reason for her dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees) outweighs the procedural defects of Gordon Square in effecting the dismissal which were caused by their small size and absence of dedicated human resource management specialists or expertise and the fact Ms Read was allowed to have a support person present to assist at discussions relating to her dismissal.
Unfairly dismissed
[58] In light of our findings in respect of the matters in s.385 of the FW Act, we are satisfied Ms Read was unfairly dismissed.
[59] We turn then to remedy.
Remedy
[60] Section 390 of the FW Act provides as follows in respect of remedies for unfair dismissal:
“(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[61] We have earlier indicated our satisfaction in respect of the matters in s.390(1)(a) and (b) and s.390(2).
[62] In respect of reinstatement, Ms Read now seeks reinstatement and associated orders. Gordon Square opposes reinstatement and the associated orders.
[63] Gordon Square points out that at first instance Ms Read indicated she was seeking compensation rather than reinstatement because she recognised that if she was reinstated she would be confronted with a situation which would cause her increased stress. 19 Ms Read’s medical practitioner had advised that her return to Gordon Square would exacerbate her medical condition. In opposing reinstatement and associated orders, Gordon Square also refers to the fact Ms Read’s position has been filled, a significant passage of time has elapsed since she was dismissed and the difficulties for the child care centre arising from any reinstatement.
[64] Ms Read submits she now feels capable of returning to her position at Gordon Square as she feels her Adjustment Disorder has abated in recent months. Further, she points out she has not been able to source alternative employment since her dismissal and her prospects of obtaining an equivalent or similar position in a small community experiencing difficult economic circumstances is very limited, particularly given her age. She also points out her employment experience is almost exclusively in child care. As to the submissions of Gordon Square to the effect that they have lost trust and confidence in her, Ms Read submits the composition of the Committee of Management of Gordon Square has changed since her dismissal, there was no valid reason for her dismissal, and she continued to work for Gordon Square for three weeks after the incident on 6 March 2012.
[65] We are satisfied the reinstatement of Ms Read is inappropriate. While Ms Read submits she now feels capable of returning to her position at Gordon Square, before the Commissioner she gave evidence that her medical practitioner had advised that her return to Gordon Square would exacerbate her medical condition. In the absence of further medical advice that her return to Gordon Square would not detrimentally impact on her health, we are satisfied that reinstatement of Ms Read is inappropriate.
[66] As to compensation, Ms Read submits her remuneration at Gordon Square consisted of an annual salary of $50,229.92 and superannuation paid at 9 per cent. She had 21 years service with Gordon Square and has been unable to source alternative employment. However, she was paid a weekly workers’ compensation payment of $985.58 pursuant to the Workers Rehabilitation and Compensation Act 1988 (Tas) until 7 May 2012.
[67] Gordon Square submits it is open to the FWC to find Ms Read’s dismissal was simply unjust, if it finds Ms Read’s conduct did not amount to a failure to provide adequate supervision. In that case, the FWC should order four weeks’ compensation, being equal to the period of notice Ms Read would have received but for her dismissal, less the weekly workers’ compensation payments she has received.
[68] We think that in respect of whether an order for the payment of compensation to Ms Read by Gordon Square is appropriate in all the circumstances of the case, there is no sound basis to conclude that an order for the payment of compensation would affect the viability of Gordon Square’s enterprise. The effect of such an order on Gordon Square, therefore, does not militate against such an order. Ms Read’s length of service was over 20 years. It is a period supporting such an order. We think the remuneration Ms Read would have received, or would have been likely to receive, if she had not been dismissed support an order for the payment of compensation. The period which Ms Read would have continued to work for Gordon Square but for her dismissal is speculative but given her age and, we accept, limited employment prospects elsewhere we think it is likely she would have continued to work for Gordon Square for around another six months. With respect to Ms Read’s efforts to mitigate the loss she has suffered because of her dismissal, Ms Read submitted she has been unable to source alternative employment. However, there was a paucity of evidence on her mitigation efforts. We conclude that Ms Read’s mitigation efforts militate against an order for the payment of compensation. The limited amount of remuneration earned by Ms Read from employment or other work during the period between her dismissal and the making of an order for compensation, including her workers’ compensation payments, and the absence of income reasonably likely to be so earned by her during the period between the making of the order for compensation and the actual compensation do not, in our view, militate against such an order. The matter of contingencies also does not militate against such an order in this case, particularly given the period she would have worked for Gordon Square but for her dismissal has passed. There are no other matters that we consider are relevant to the circumstances of the case for the purpose of considering when a compensation order is appropriate.
[69] Taking the above findings into account, we consider an order for the payment of compensation to Ms Read by Gordon Square is appropriate in all the circumstances of the case. The matters supporting a compensation order outweigh that going against such an order.
Compensation amount and instalments
[70] Sections 392 and 393 of the FW Act provides as follows in respect of compensation:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
[71] We will apply these provisions to this case.
(i) Remuneration that would have been received (s.392(2)(c))
[72] Ms Read submitted to us that her remuneration at Gordon Square was an annual salary of $50,229.92 and 9 per cent in superannuation. We presume the annual salary cited was a gross amount.
[73] We have already indicated that if Ms Read had not been dismissed we think she would have continued to work for Gordon Square for around another six months. Over that six month period the remuneration Ms Read would have received, or would have been likely to receive, from Gordon Square is some $25,000 gross plus 9 per cent in superannuation.
(ii) Remuneration earned (s.392(2)(e) and Income reasonably likely to be earned (s.392(2)(f))
[74] With respect to the amount of any remuneration earned by Ms Read from employment or other work during the period between her dismissal and the making of an order for compensation and any income reasonably likely to be so earned by her during the period between the making of an order for compensation and the actual compensation, given the facts in this case concerning her earnings we consider we can deal with these circumstances together. Ms Read received $985.58 per week, we assume, gross pursuant to workers’ compensation legislation between, it seems, her dismissal on 28 March 2012 and 7 May 2012. An amount of around $5,900 gross. We are not aware of any other amount received by her since 7 May 2012. As a result, the amount of relevant income reasonably likely to be earned by her during the period between the making of the order for compensation and the actual compensation will be nil.
[75] We appreciate that workers’ compensation payments may not be “remuneration earned … from employment or other work” or “income reasonably likely to be so earned” within the meaning of ss.392(2)(e) and (f) of the FW Act. If not, we nonetheless think the workers’ compensation payments are a circumstance to be taken into account as another relevant matter in the determination of an amount for the purposes of a compensation order. 20
[76] Therefore, from the amount of some $25,000 gross plus 9 per cent in superannuation that Ms Read would have received, or would have been likely to have received, from Gordon Square if she had not been dismissed we deduct $5,900 gross. This results in an amount of $19,100 gross plus 9 per cent in superannuation.
[77] No party suggested we should further reduce or, indeed, increase any amount of compensation otherwise arrived at because Ms Read had no other relevant earnings, and it is reasonably likely will have no relevant earnings, post 7 May 2012 to the date of any actual compensation. We are satisfied we should make no such reduction or increase.
(iii) Other matters (s.392(2)(g)
[78] In this case, we are not persuaded we should make any deduction for contingencies from the amount derived from the circumstances in s.392(2)(c) or from the amount of $19,100 gross plus 9 per cent in superannuation we have further derived. The projected period of continued employment has passed and no sound basis for making a deduction for contingencies has been made.
[79] We have considered the impact of taxation but we elect to settle a gross amount and leave taxation for determination. There are no other matters that we consider are relevant in determining an amount of compensation instead of reinstatement, apart from those in ss.392(2)(a), (b) and (d), 392(3) and 392(5) of the FW Act with which we now deal.
(iv) Viability (s.392(2)(a))
[80] There is no sound basis to conclude that an order of compensation for $19,100 gross plus 9 per cent in superannuation payable by Gordon Square to Ms Read would affect the viability of Gordon Square’s enterprise. It is not a circumstance which warrants adjustment to the amount.
(v) Length of service (s.392(2)(b))
[81] Ms Read’s length of service with Gordon Square was some 21 years. This length of service certainly does not warrant a reduction in the amount of $19,100 gross plus 9 per cent in superannuation, but we will not increase the amount for it either given the manner in which the matter was dealt with in the submissions of the parties.
(vi) Mitigation efforts (s.392(2)(d))
[82] As we have indicated, there was a paucity of evidence on Ms Read’s efforts to mitigate the loss she has suffered because of her dismissal. In the circumstances, we therefore reduce the amount of $19,100 gross plus 9 per cent in superannuation to $17,000 gross plus 9 per cent in superannuation.
(vii) Misconduct (s.392(3))
[83] Section 392(3) of the FW Act requires the FWC to reduce the amount of compensation it would otherwise order by an appropriate amount on account of a person’s misconduct if satisfied the misconduct of the person contributed to the employer’s decision to dismiss the person. The section requires the FWC to consider, amongst other things, if the relevant person engaged in misconduct and, if so, if that misconduct contributed to the employer’s decision to dismiss the person. The section seems to require such consideration even if the FWC has found there was no valid reason for the person’s dismissal. Although, if there was no valid reason for the dismissal we think that may be relevant to the FWC’s decision as to the “appropriate” amount by which to reduce the amount of compensation the FWC would otherwise order.
[84] Section 392(3) of the FW Act had its origins in the amendments to the pre-reform WR Act arising from the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices Act). The Work Choices Act amended the pre-reform WR Act to include a new s.654(8)(e) in respect of the matters to be taken into account by the AIRC in determining a compensation amount. Section 654(8)(e) was as follows:
“654(8) Subject to subsections (8), (9), (10) and (11), in determining an amount for the purposes of an order under subsection (7), the Commission must have regard to all the circumstances of the case including: …
(e) any misconduct of the employee that contributed to the employer's decision to terminate the employee's employment”.
[85] The Work Choices Act also amended the pre-form WR Act to include a new s.654(10), which is similar to s.392(3) of the FW Act. Section 654(10) was as follows:
“654(10) If the Commission is satisfied that misconduct of the employee contributed to the employer's decision to terminate the employee's employment, the Commission must reduce the amount it would otherwise fix under subsection (7) by an appropriate amount on account of the misconduct.”
[86] In the Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) (Work Choices Bill), ss.654(8) and 654(10) of the WR Act were referred to as proposed paragraph 170CH(da) and subsection 170CH(7B) respectively. On the renumbering of the WR Act following the passage of the Work Choices Bill, proposed paragraph 170CH(7)(da) and subsection 170CH(7B) became s.654(8)(e) and s.654(10) respectively.
[87] The Explanatory Memorandum to the Work Choices Act said in respect of these sections:
“2184. Subsection 170CH(7) requires the AIRC to have regard to all the circumstances of a matter in assessing an appropriate amount to be paid to an employee in lieu of reinstatement (ie in cases where the AIRC determines that reinstatement is not appropriate).
2185. The provision sets out an inclusive list of factors to be considered, including the effect of any order on the employer’s viability, the amount of remuneration the employee would have earned but for the termination, and any efforts made by the employee to mitigate the loss suffered as a result of the termination of their employment.
2186. Proposed paragraph 170CH(7)(da) would add to that list by requiring the AIRC to also consider any misconduct of the employee that contributed to the employer’s decision to terminate the employee’s employment…
2191. Proposed 170CH(7B) would require the AIRC to reduce the amount paid to an employee in lieu of reinstatement by an appropriate amount where it finds that the employee’s misconduct contributed to the dismissal.
Illustrative Example Shauna is employed by M Sparkles Pty Ltd. M Sparkles Pty Ltd has a written policy that allows employees to take home any of the company’s products that do not pass the company’s manufacturing standards. However, the policy creates procedures that must be followed when removing any of the products. In particular, employees must record in a designated book what, and how much product they have removed. The employee must then receive the supervisor’s endorsement that the record is true and correct. Shauna decides to take home some inferior lollipops and fills out the record book accordingly but she fails to get her supervisor Peter’s signature in the book. The following day her employer terminates her employment for failing to follow company procedures and policy. The AIRC finds that the dismissal was harsh, unjust or unreasonable because Shauna was a model employee and other employees frequently failed to follow company policy and had not been dismissed. However in ordering the payment of an amount in lieu of reinstatement, the AIRC takes account of the fact that Shauna’s failure to follow company policy contributed to her dismissal. The AIRC accordingly reduces the amount of money that it would have ordered Shauna be paid but for her misconduct.” |
[88] We are not satisfied Ms Read engaged in misconduct on 6 March 2012. However, we are satisfied she engaged in misconduct on 9 August 2011 and, having regard to the letter terminating Ms Read’s employment, that that misconduct contributed to the employer’s decision to dismiss her. We consider a reduction on account of that misconduct of $1,000 gross in the amount of compensation of $17,000 gross plus 9 per cent in superannuation that we would otherwise order is appropriate. We consider such a reduction is appropriate given the nature of that misconduct, the fact it occurred sometime before her dismissal, the manner in which that misconduct was regarded at the time and the consequences of that to our conclusion that that misconduct in itself did not constitute a valid reason for Ms Read’s dismissal by Gordon Square. The reduction results in an amount of $16,000 gross plus 9 per cent in superannuation.
(viii) Compensation cap (s.392(5))
[89] Since the amount of compensation of $16,000 gross plus 9 per cent in superannuation is less than the compensation cap in s.392(5) of the FW Act, we make no further reduction for that reason.
(ix) Instalments (s.393)
[90] There was no submission that any amount of compensation should be subject to payment by instalments. We are not satisfied that in this case payment by instalments is warranted.
Conclusion
[91] In light of the above, we consider we should make an order that Gordon Square pay $16,000 gross plus 9 per cent in superannuation less taxation as required by law as compensation to Ms Read in lieu of reinstatement within 14 days of the date of this decision. It accords a fair go all round to both Gordon Square and Ms Read.
[92] We therefore quash the Commissioner’s decision and order in respect of Ms Read’s unfair dismissal remedy application. We will order that Gordon Square pay $16,000 gross plus 9 per cent in superannuation less taxation as required by law as compensation to Ms Read in lieu of reinstatement within 14 days of the date of this decision. An order 21 to that effect is being issued at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
C. Dockray, of counsel, for Mary Read.
C. Garwood, solicitor, for Gordon Square Child Care Centre Inc T/A Gordon Square Child Care Centre.
Hearing details:
2012.
Melbourne and Launceston (video hearing):
November, 19.
Final Written submissions:
Appellant, 26 November 2012 and 5 December 2012.
Respondent, 3 December 2012.
1 Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre, [2012] FWA 7680.
2 Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre, PR529179.
3 Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre, [2012] FWA 7680 at [114] and [125].
4 Fair Work Act 2009 (Cth), s.394.
5 Fair Work Act 2009 (Cth), s.390.
6 Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre, [2012] FWA 7680 at [114].
7 Ibid at [125]
8 Exhibit A7 in U2012/6941.
9 Exhibit R2 in U2012/6941.
10 Exhibit A2 in U2012/6941.
11 (1936) 55 CLR 499 at 504 - 505.
12 Transcript in U2012/6941 at PN1768 - 1769.
13 Fair Work Act 2009 (Cth), s.23.
14 Exhibit R2 in U2012/6941.
15 Mary Read v Gordon Square Child Care Centre Inc Ta/s Gordon Square Early Learning Centre, [2012] FWA 7680 at [104] - [111].
16 Print S2679.
17 Print S6824.
18 Print S9280.
19 Transcript in U2012/6941 at PN1775.
20 Workers’ compensation amounts have usually been taken into account in determining an amount for a compensation order in respect of a termination of employment remedy, see Brown v Power and Another t/as Royal Hotel Tumut, (1996) 66 IR 1 at 6 - 7 and Shorten and Others v Australian Meat Holdings Pty Ltd, (1996) 70 IR 360 at 376 and 381.
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