| [2019] FWC 5574 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Khushwant Kaur
v
Moorditch Gurlongga Assoc T/A Coolabaroo Neighbourhood Centre
(U2019/4487)
COMMISSIONER WILLIAMS |
PERTH, 19 AUGUST 2019 |
Application for an unfair dismissal remedy.
[1] This matter involves an application made on 2 February 2019, by Mrs Khushwant Kaur (Mrs Kaur or the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Moorditch Gurlongga Assoc T/A Coolabaroo Neighbourhood Centre (the Respondent).
[2] The application proceeded to conciliation but was not resolved and so has been referred to myself for determination.
[3] Mrs Kaur was dismissed from her employment as an early childhood educator on Monday, 1 April 2019. The termination of employment letter of the same date signed by the Chief Executive Officer, Joanne Della Bona refers to a discussion with “our external HR person” on 27 March 2019. The letter then refers to the main breaches as follows:
• “The children were left unattended when they were playing outside. At no point you stopped the child, Child A from throwing objects that could injure the other children.
• The trampoline was broken and off limits. You did not attempt to stop Child A from accessing and playing on the Trampoline.
• Another child (child B) was stabbed with a pencil and no incident report was done and reported.
• The children were left unattended when you were outside to speak to Child A. At no time before the incident or when the child was agitated around 17:03, you asked for help with the other staff members and or the supervisor in charge.
• Witnesses, for example the parent of Jessica said that you were very rude and abrupt with the child when he was found
• You were using your personal phone on the floor when is in direct violation of the policy of the Centre. A reminder that only last week a meeting was conducted to address that no personal phone is allowed on the floor
• You ran after Child A without notifying the supervisor in a proper manner that the other children were left unattended.
• The parents are claiming that you are bullying Child A at the Centre with an aggressive behaviour towards him. You also constantly pester the child on Monday as to why he jumped the fence and asked him for an apology.”
[4] The letter concludes that “In light of those above breaches, our zero tolerance in endangering a child safety and procedures not followed, we have no choice in terminating your employment with us effectively as of Monday the 1st of April 2019.” (sic)
[5] Whilst it was not requested by either party the Commission has chosen to anonymise the names of the children throughout this decision.
[6] At the hearing of this matter Mrs Kaur was represented by her support person Mr Singh. Mr Singh is neither a lawyer nor a paid agent. The Respondent was represented by Ms Clarrissa Bennett (Ms Bennett) the Respondents Acting Director.
[7] The materials each party filed, as required by the Commission’s directions being witness statements, supporting documents and an outline of submissions, were in each case significantly deficient. Neither party could be said to have presented a comprehensive case to the Commission. This has posed some difficulties in this matter.
[8] Evidence was given by Mrs Kaur and for the Respondent by Ms Bennett, Ms Jessica Evans (Ms Evans) and Ms Donna May (Ms May).
[9] The Respondent operates the Coolabaroo Neighbourhood Centre (the Centre). The centre provides childcare and activities that incorporate Noongar language and that teach children Aboriginal culture. The care provided includes long day-care, out-of-school hours care and vacation care.
[10] Mrs Kaur began work at the Coolabaroo Neighbourhood Centre as a casual employee in June 2017. Mrs Kaur was employed as a qualified educator. In July 2018 she was offered and accepted a permanent part-time position. Her contract provides her hours of work are 4.5 per day Monday to Friday. Her hourly rate of pay was $25.96.
[11] On 15 March 2019, between 5.00-5.30 p.m. in the out of school hours care room for children age 6 to 12 years, an incident occurred.
[12] Mrs Kaur’s evidence was that one child present in that room was Child A. Child A is an 11-year-old boy. Mrs Kaur’s evidence was that Child A is a lovely child but has at times behaved aggressively and his mother had told Mrs Kaur that he has had anger management sessions.
[13] Mrs Kaur’s evidence was that children had been fighting over YouTube because another educator, who had left at 4.30 p.m had allowed one child to use the computer to watch YouTube. Her evidence was that she does not let the children watch YouTube because computers are only for online study and homework.
[14] Mrs Kaur’s evidence was that when they were inside Child A reacted very aggressively, so Mrs Kaur tried to calm him down, but he had a pencil in his hand and he stabbed, without injury or wound, another boy Child B with it.
[15] Mrs Kaur immediately stopped them, but Child A did not react well and ran outdoors where he started throwing toys and chairs and showing a lot of aggression towards the other children. Mrs Kaur was worried and concerned about the other children’s well-being and safety and so she sent the five other children inside.
[16] Mrs Kaur says Child A then started kicking and pushing her, so she tried to calm him down, but he did not want to talk to her. She says she gave him a break to cool down.
[17] She thought he would come back inside but instead Child A ran towards the fence and tried to jump over it. She got a grip on his forearm because she was worried about his safety. He started shouting “leave my arm, my hand is broken, let me go”. Mrs Kaur let his arm go and he jumped the fence and ran over the path outside the main gate.
[18] Mrs Kaur’s evidence was that it was an emergency and she immediately ran to the administration area where there were two parents picking up their children. She went to the supervisor’s room to inform her. Mrs Kaur says she told the supervising officer Candice Walker (Ms Walker) to go to the children’s room from where Mrs Kaur had come. There was another educator Ms May at administration and Mrs Kaur told her what had happened and took her with Mrs Kaur and they ran outside after Child A. The mother of another child was then walking into the administration area and she pointed out to Mrs Kaur the direction in which Child A had run and offered to help by saying she would bring her car to follow Child A.
[19] The oral evidence of Ms May, which I prefer, was that Mrs Kaur did not tell Ms Walker to go to the children’s room she had come from but rather Ms Walker asked Mrs Kaur when she ran out to administration who was with the children.
[20] Child A kept running down the footpath and about 700m later reached a friend’s house where he stopped. Ms May arrived before Mrs Kaur and Ms May tried to speak to him. Mrs Kaur arrived shortly afterwards. Mrs Kaur has a previous knee injury, was in pain and short of breath.
[21] Mrs Kaur’s evidence was that she asked Child A’s friends mother, Ms Evans, to ring Child A’s mother which she did. Child A’s mother arrived sometime thereafter, and she asked Child A to come and talk to her but he refused. He was still angry and said he didn’t want to go. Mrs Kaur says his mother left Child A with the family friend. Ms Evans his mother then took Mrs Kaur and Ms May by car back to the centre.
[22] Mrs Kaur said she explained what had happened to Child A’s mother and she told Mrs Kaur that Child A’s cousin had done the same thing a few weeks back and Child A had just copied him.
[23] When Mrs Kaur returned to the centre, Ms Walker said she had called Ms Bennett and the CEO Ms Della Bona. The staff, Mrs Kaur, Ms May and Ms Walker then completed incident reports, and Mrs Kaur gave a report form to Child A’s mother as well for her to complete.
[24] Mrs Kaur’s evidence was that she completed another incident report for Child B, the child stabbed with a pencil by Child A and his mother signed this the following Tuesday, 19 March 2019.
[25] The following Wednesday, 20 March 2019 the Respondent provided Mrs Kaur with a letter stating that the incident the previous Friday, was of serious concern and under investigation. The letter advised Mrs Kaur she was being stood down from her duties with pay and she will be requested to attend a disciplinary meeting where she had the choice of bringing a support person. The letter said any further comments she wished to make she should not hesitate to put in writing. No date for the meeting was specified.
[26] In the application filed by Mrs Kaur she says that on Saturday, 23 March 2019 she emailed the Respondent requesting a meeting to know the procedure and her rights while she is being investigated and requesting them to send a copy of the complaints or allegations made against her.
[27] In reply on Monday, 25 March 2019 the Respondent’s external HR adviser Mr Ramsawmy wrote to Mrs Kaur advising that a meeting was scheduled for Thursday, 28 March 2019 and she was welcome to bring a support person. The letter stated that:
“The intent of the meeting is to discuss the incidents, investigations processes and give you a chance to response as well as provide us any supporting documents in resolving this matter.” (sic)
[28] In reply on Monday, 26 March 2019 Mrs Kaur emailed Mr Ramsawmy and requested that “all completed incident reports be emailed to me, so I can be prepared and organised.”
[29] Later the same day Mr Ramsawmy replied to Mrs Kaur stating that:
“The purpose of the independent external HR meeting as you requested is to understand and hear from both parties in regards to the incidents and provide you with all the reports et cetera.” (sic)
The meeting is to gather information and facts.”
[30] At no time did the Respondent provide Mrs Kaur with copies of any incident reports before, during or after the meeting.
[31] Subsequently, at the Respondent’s request the meeting was moved forward one day and was held on Wednesday, 27 March 2019. Present at the meeting were Mrs Kaur, Mr Singh, Ms Bennett and Mr Ramsawmy.
[32] Mrs Kaur in her application said that at the meeting she attended with her support person Mr Singh. She says there was some discussion of what happened on 15 March 2019. She explained she tried her best to handle the situation. The Respondent’s HR representative told her they had video footage (assumedly CCTV) of where she was at 17.03, 17.13 and 17.17 on the day of the incident. Ms Bennett then read some incident reports and the HR person told her he had met with other staff including Ms Walker and Ms May regarding the incident. He then asked her if she had anything to say. Mrs Kaur’s application states that she was very emotional, stressed and upset. She stated that this incident should have been investigated by Education and Carer Regulatory Unit as she was taught in her National Quality Framework regarding children well-being and safety.
[33] Mrs Kaur’s application says she requested a short break. She returned to the meeting shortly thereafter.
[34] Under cross examination Mrs Kaur agreed that at the meeting Ms Bennett read out only two critical incident reports, one from Ms Walker and one from Ms May. She was not given copies of these. I accept this evidence and note that Ms Evans incident report and email were not read out to Mrs Kaur nor where these given to her prior to her dismissal.
[35] Mrs Kaur was not shown the CCTV recording at this meeting nor at any other time.
[36] Mrs Kaur’s Form F2 Unfair Dismissal Application at question 3.2 reads as follows:
“I asked the HR if I have any allegation or complaint against me, will he send me so I can respond according. He replied to me that he will check any breaches, policy, fair work and will discuss with the Executive Director (Joanne) on Friday and will let me know on coming on Monday.” (sic)
[37] It is clear from the evidence that Mrs Kaur’s reference to “HR” means Mr Ramsawmy.
[38] Mrs Kaur agreed she is familiar with the Regulations and the Respondent’s policies and procedures.
[39] Following this meeting on Monday, 1 April 2019 at 11.41 a.m. Mrs Kaur received an email which included her termination of employment letter mentioned above.
[40] Evidence was given by Ms Evans who is the occupier of the house to which Child A ran having jumped the fence at the centre. Coincidentally, Ms Evans has 20 years’ experience herself as a centre director at a long day-care centre.
[41] Her evidence was that she was at home on Monday, 15 March 2019 when she heard Ms May calling up her driveway to Child A to come to her and that she would take him to his mother. Ms Evans went to the front of her house and saw Child A who was visibly upset hiding behind her carport. Ms May tried to coax him out but he wouldn’t come out. Ms Evans says she asked Child A whether he would like to stay there, and he replied yes. She later rang his mother.
[42] Mrs Kaur had arrived and abruptly approached Child A telling him to come out and return to day-care.
[43] Child A’s mother then arrived at Ms Evans house and she gave permission for Child A to remain at Ms Evans house.
[44] Ms Evans evidence was that she thought Mrs Kaur could have handled the situation a lot better. She says she fully understood the severity of what had occurred but when a child is that distraught you need to ensure you are not coming across in a threatening way. She says Child A looked to run again when Mrs Kaur arrived which made her think the relationship between the Child A and educator was not a positive one.
[45] The evidence of Ms May was consistent with that of Mrs Kaur’s as to what had transpired with her and Mrs Kaur following Child A down the footpath and the mother of another child following him in her car.
[46] Ms May says in her incident report and oral evidence that when she arrived at Ms Evans house Child A was cowering in a corner. She tried to encourage Child A to come back to the centre, but he said he wanted to stay at his friend’s house. She says she remained calm and tried to encourage Child A to talk to her and come back. She says that when Mrs Kaur arrived, he became more defensive.
[47] Whilst I acknowledge Ms Evans industry experience, I do not accept her opinion that what she observed demonstrated Mrs Kaur and Child A’s relationship was not a positive one and that Child A felt threatened by Mrs Kaur. Ms Evans at the time had no knowledge of Child A’s earlier behaviour at the centre.
[48] The facts are Ms May arrived at Ms Evans house before Mrs Kaur did. Child A was already hiding, as Ms Evans put it, in her carport. Ms May’s evidence was that she calmly sought to coax Child A out from behind the car, but he would not come. Only after this did Mrs Kaur arrive.
[49] Child A also refused to talk to his mother when she next arrived and refused to leave with her. His mother had to ask Ms Evans if he could stay with her.
[50] Child A was uncooperative, not just with Mrs Kaur, but also with Ms May and with his mother.
[51] There are a number of possible explanations for Child A’s behaviour at Ms Evans house other than Ms Evans particular opinion. Accepting Mrs Kaur spoke to Child A in a manner that was inappropriate when she arrived his refusal to return to the centre when she asked, rather than being because he had a negative relationship with her or felt threatened, might have been because at 11 years of age he understood stabbing another child with a pencil, throwing things at other children, kicking and pushing Mrs Kaur, jumping the fence at the centre and running away was wrong and could have negative consequences for him.
[52] An incident report from Ms Walker 1 was tendered by the Respondent and this was not objected to by the Applicant. However, as noted at the hearing the Commission should be cautious in what weight it gives to the evidence of a witness who was not in attendance to swear to the truthfulness or accuracy of the report nor available for cross-examination nor to be asked questions by the Commission.
[53] Ms Walker’s incident report adds little to the above evidence. Ms Walker said that as Mrs Kaur left the centre, she went to the room from where Mrs Kaur had come, where she found the children unattended and most were crying. She comforted the children. She says then another staff member came to the room. She then went out the front to administration to ring Child A’s mother who she says was not angry and reassured Ms Walker she would find him. She then proceeded to ring Ms Bennett.
[54] Ms Bennett’s evidence 2 was that she was not in attendance at the centre the day of the incident. From her investigation though her conclusion was that what occurred involved breaches by Mrs Kaur of a number of the “2006 regulations.” These regulations were ones concerning managing children’s behaviour in a positive manner, requiring children to be supervised at all times and following the centres particular policy and procedures.
[55] Her evidence was that the incident was of a serious nature which resulted in a child getting that worked up and angry that he ended up jumping the fence and running away from the centre to a friend’s house. The prevention method was not followed by Mrs Kaur.
[56] Her evidence was that this could have been prevented. She says you could see from CCTV recording Child A was upset and frustrated for a good ten minutes before he jumped the fence. Her evidence was he was throwing objects around the yard which were just missing other children’s head by centimetres and he also had stabbed another child with a pencil.
[57] Ms Bennett says that it was also brought to her attention afterwards that a few of the children felt they get bullied by Mrs Kaur and that she is always mean to them and comparing them to her children and telling them they should be able to read as her son is younger and he can read.
[58] In her oral evidence Ms Bennett stated that the decision to terminate Mrs Kaur was made by the CEO and the Board and she was involved in the decision-making process.
[59] The actions of Mrs Kaur that Ms Bennett says breached the regulations and the Respondent’s policies and procedures and amount to the reasons for her dismissal were:
• Not trying to calm Child A down.
• Manhandling Child A before he jumped the fence, holding him by both arms when he was trying to kick her. Her evidence was there is a phone in the room and Mrs Kaur should have called for assistance from another staff member. However, Ms Bennett said that this issue was not discussed with Mrs Kaur in the disciplinary meeting. Mrs Kaur had said she handled things to the best of her ability and had done everything correct.
• Leaving five children unsupervised when Mrs Kaur went to chase Child A.
• Chasing Child A on foot which created a danger he could run in front of a car. Her evidence was that the proper procedure is to follow the child in a car and ring the parent and the parent will come and assist to find the child. Ms Bennett said she believed that Mrs Kaur would have been aware of this preferred approach because she had previously owned a day-care centre. Ms Bennett’s evidence was that this isn’t an industry practice but rather the Respondent’s policy and procedure. There is no evidence the Respondent had told Mrs Kaur about this policy or trained her in this procedure. However, Ms Bennett’s evidence was that this preferred approach was not discussed in the disciplinary meeting.
[60] Ms Bennett says that accusations of belittling and bullying by Mrs Kaur of Child A and his sibling made by their mother and accusations similarly from other children were put to Mrs Kaur during the disciplinary meeting, but Mrs Kaur said she had had no further comment. Ms Bennett’s evidence was that these allegations however did not play any part in the decision to terminate Mrs Kaur.
[61] The Commission accepts the letter of termination as reflecting the conclusions and decision of the CEO and the Board.
[62] Following her dismissal Ms Kaur gained new employment on 12 June 2019 having made many applications for jobs.
[63] Section 387 of the Act sets out the matters the Commission must consider when determining whether a dismissal was harsh, unjust or unreasonable. This provision is set out below.
“387 Criteria for considering harshness etc.
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.”
[64] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 3 and should not be “capricious, fanciful, spiteful or prejudiced.”4
[65] It is apparent that the Respondent dismissed Mrs Kaur because they viewed her as having breached in a number of ways, the applicable regulations and the Respondent’s policies and procedures.
[66] The evidence of Ms Bennett was that the decision to dismiss Mrs Kaur was made by the CEO and the Board.
[67] The CEO’s letter terminating Mrs Kaur’s employment listed the “main breaches” as those set out below. Below each “breach” is the Commission’s decision as to whether this amounted to a valid reason for dismissal or not.
1. The children were left unattended when they were playing outside. At no point you stopped the child, Child A from throwing objects that could injure the other children.
[68] There is no evidence the children were left unattended outside and therefore this is not a valid reason to dismiss Mrs Kaur.
[69] It is correct that Mrs Kaur did not stop Child A throwing objects. The Respondent is clear that Mrs Kaur should at no stage have “manhandled” Child A so what steps she was to take to stop a 11 year old throwing things has not been explained by the Respondent. Further, the evidence is that when Child A started throwing things, she moved the other children inside out of harm’s way. Consequently, this complaint that Mrs Kaur did not stop him throwing objects is not a valid reason for Mrs Kaur’s dismissal.
2. The trampoline was broken and off limit. You did not attempt to stop Child A from accessing and playing on the Trampoline.
[70] The limited evidence before the Commission regarding the trampoline does not allow the Commission to determine whether this was or was not a valid reason for Mrs Kaur’s dismissal.
3. Another child (Child B) was stabbed with a pencil and no incident report was done and reported.
[71] The unchallenged evidence of Mrs Kaur at the hearing was that she did complete an incident report regarding the pencil stabbing which was signed by the Child B’s mother on Tuesday, 19 March 2019. This complaint then is not a valid reason for Mrs Kaur’s dismissal.
4. The children were left unattended when you were outside to speak to Child A. At no time before the incident or when the child was agitated around 17:03, you asked for help with the other staff members and or the supervisor in charge.
[72] Mrs Kaur had moved five children inside to prevent them being injured by Child A throwing things around outside. For the time she was then outside dealing with Child A these children inside were unattended. There is no evidence how long they were unattended. It is also correct that Mrs Kaur didn’t ask the Supervisor or other staff for help dealing with the escalating problem of Child A’s behaviour. I accept these two complaints are valid reasons for Mrs Kaur’s dismissal.
5. Witnesses, for example the parent of Jessica said that you were very rude and abrupt with the child when he was found
[73] It is not clear whom the “parent of Jessica” is. If it is a mistaken reference to Ms Evans, then I accept the evidence is Mrs Kaur spoke abruptly and inappropriately to Child A when she caught up with him at Ms Evans house. The context was that 11 year old Child A had been behaving in a physically aggressive way towards Mrs Kaur and the other children, he had stabbed one child with a pencil, jumped the fence and run 700m away from the centre and hid in the carport of a house. Mrs Kaur had followed Child A on foot and was in pain from her knee and out of breath by the time she found him at Ms Evans house. Whilst she did then speak inappropriately to him it was a lapse in professionalism by Mrs Kaur following a very stressful series of events. Considering all of those circumstances this was not a valid reason for Mrs Kaur’s dismissal.
6. You were using your personal phone on the floor when is in direct violation of the policy of the Centre. A reminder that only last week a meeting was conducted to address that no personal phone is allowed on the floor.
[74] Mrs Kaur does not deny using her phone contrary to the regulations and/or policies and procedures which I accept is a valid reason for her dismissal.
7. You run after Child A without notifying the supervisor in a proper manner that the other children were left unattended.
[75] The proper manner it seems for Mrs Kaur to have notified the supervisor was, after Child A had jumped the fence, she should have remained with the other children in the room and rang Ms Walker in administration to explain what had happened. Ms Walker would then ring Ms Bennett who would then handle the situation of the child jumping the fence and running away 5. I note on the day in question Ms Bennett was not at the centre.
[76] Self-evidently following that procedure would have delayed anybody from the centre going outside to see in which direction Child A was running away and potentially would mean nobody would have any idea in which direction the child had gone. This procedure could involve further delay should the supervisor Mrs Kaur was supposed to ring be already engaged on another phone call or otherwise unable to immediately answer Mrs Kaur’s call. Further delay again could occur in contacting Ms Bennett by phone.
[77] Mrs Kaur responded quickly and effectively to the situation, leaving the children unattended for a few moments at most, and enlisting assistance from another staff member and a parent. Consequently, Ms May and Mrs Kaur exited the centre very quickly and so were able to see in which direction Child A was running and immediately follow him. The benefits of this are obvious.
[78] Mrs Kaur was responding to an emergency situation of a child jumping the fence and who was running away from the centre. Criticism of her actions must be considered in this context. This complaint against her by the Respondent could not in these circumstances be said to be sound, defensible or well-founded. This was not a valid reason for her dismal.
8. The parents are claiming that you are bullying Child A at the Centre with an aggressive behaviour towards him. You also constantly pester the child on Monday as to why he jumped the fence and asked him for an apology.
[79] The evidence of Ms Bennett was that these complaints against Mrs Kaur did not form part of the decision to dismiss her.
[80] The notification of a valid reason must take place before any decision to terminate an employees employment in order to provide that employee an opportunity to respond to the reason identified. 6
[81] In this case the Respondent invited Mrs Kaur to attend a meeting. At the meeting there was some discussion as to what occurred on Friday, 15 March 2019 and Ms Bennett read out loud some incident reports. There were general statements made that Mrs Kaur had breached regulations and policies. Mrs Kaur was asked if she had anything to add. She said she had handled the situation to the best of her ability and had done nothing wrong.
[82] The Respondent at no stage asked Mrs Kaur to respond to each of the complaints listed in the letter of termination.
[83] Neither prior to that meeting, during that meeting or afterwards did the Respondent notify Mrs Kaur of her particular conduct, what she did or didn’t do, that her employer viewed as being reasons to possibly terminate her employment.
[84] The Respondent did not for example ask her to attend another meeting where they explained the particular things she did or didn’t do which they considered so serious that she should be dismissed.
[85] Nor did they write to Mrs Kaur, before they decided to dismiss her, with the particulars of the reasons they were considering dismissing her and inviting her to provide any further information for them to consider before finally deciding whether they would act to dismiss her or not.
[86] Mrs Kaur was not notified of the reasons the Respondent was considering dismissing her before the employer did in fact dismiss her.
[87] In order to be given an opportunity to respond, the employee must be made aware of allegations concerning the employee’s conduct so as to be able to respond to them and must be given an opportunity to defend themselves.
[88] As explained above Mrs Kaur was not notified of the reasons the employer was considering dismissing her before she was dismissed and as a result she was not given an opportunity to respond to any specific reasons related to her capacity or conduct before the decision to dismiss her was made.
[89] There was no refusal to allow Mrs Kaur to have a support person during the one meeting.
[90] To the extent that the complaints against Mrs Kaur could be said to involve unsatisfactory performance, Mrs Kaur had no prior warnings during her period of employment.
[91] The employer is a medium-sized enterprise with 60 employees and could be expected to follow procedures properly when effecting a dismissal.
[92] The Respondent used an external HR services provider who was involved in the investigation and meeting with Mrs Kaur. Self-evidently the obvious failure to follow a fair procedure when effecting Mrs Kaur’s dismissal was not due to the absence of Human Resource Management specialists or expertise.
[93] As noted above Mrs Kaur has worked for the Respondent since 2018, on a part-time basis and before that since June 2017, as a casual and there is no evidence that there had been any disciplinary action taken against her in that time.
[94] The degree of seriousness of any misconduct may be taken into account as a relevant matter when considering whether dismissal was a proportionate response to the conduct in question.
[95] Of the multiple reasons the Respondent gave for dismissing Mrs Kaur only the fact she momentarily left the five other children unattended in the adjacent room when she spoke to Child A outside and did not ask for help from another staff member in handling his physically aggressive behaviour related to the events of Friday, 15 March 2019. In my view the dismissal of Mrs Kaur for these reasons on the evidence put before the Commission would be a disproportionate response in all the circumstances of what occurred on that Friday afternoon.
[96] Separately, Mrs Kaur using her mobile phone on the floor contrary to the Respondent’s policy was similarly not sufficiently serious to warrant dismissal.
[97] The Respondent would however have been justified in a taking disciplinary action ranging from counselling to formal written warnings of Mrs Kaur regarding these specific failings.
[98] In this case the Respondent relied on multiple reasons for dismissing Mrs Kaur. The majority of these reasons were not in the particular circumstance’s valid reasons for her dismissal.
[99] Those reasons that were valid reasons for dismissal, considered in context, were not sufficiently serious to warrant Mrs Kaur’s dismissal. Some disciplinary action short of dismissal was however certainly open to the Respondent.
[100] Separately, the Respondent’s decision to dismiss followed a procedurally unfair process. The Respondent did not notify Mrs Kaur specifically what she had or hadn’t done that the Respondent believed warranted dismissal. The first time the Applicant was made aware of the specific complaints was when she received the termination of employment letter.
[101] General statements that an employee has breached a particular regulation or policy, without specifying what the employee allegedly has done or hasn’t done to breach those regulations or policies, does not satisfy the requirement for the employee to be notified of the reasons they may be dismissed and does not provide an opportunity to respond to those reasons before the employer makes the final decision to dismiss.
[102] Mrs Kaur was not properly notified of the reasons the employer was considering dismissing her and she was not, as a consequence, given an opportunity to respond to those specific reasons before the employer decided to dismiss her.
[103] Consequently, my decision is that Mrs Kaur’s dismissal was unjust and unreasonable, and I find she was unfairly dismissed.
[104] There are a number of lessons for the Respondent in what occurred that should trigger some reflection and hopefully some changes to improve how such issues are dealt with.
[105] Considering the full circumstances in this matter and noting that Mrs Kaur has obtained other employment, I am satisfied that reinstatement is inappropriate in this case. I do consider that an order for payment of compensation is however appropriate.
[106] The employer has 60 employees and there is no suggestion that an order of compensation would affect the enterprises viability.
[107] Mrs Kaur has been employed since June 2017 and on a part-time basis since July 2018.
[108] Mrs Kaur has actively tried to mitigate her loss and gained new employment ten weeks after her dismissal. She has not earned any remuneration prior to gaining her new job.
[109] If the dismissal had not occurred, it seems likely that some form of counselling or warning would have resulted, which raises some doubt as to how long Mrs Kaur would have remained in employment. As always, these matters are difficult to assess but noting the length of employment and considering some of the apparent friction in the relationships within the business my assessment is Mrs Kaur would have remained in employment for a further eight weeks, had she not been dismissed. Her hourly rate was $25.96 and she was contracted to work 4.5 hours per day Monday to Friday. Her weekly gross remuneration therefore was $584.10.
[110] The remuneration she would have received if she had not been dismissed was $584.10 x 8 weeks = $4,672.80 gross.
[111] Whilst Ms Kaur’s very limited misconduct may have been a minor contributor to the Respondents decision to dismiss her a large majority of the reasons for dismissal relied on by the Respondent were not valid at all. Consequently, I am not satisfied it is appropriate to reduce the compensation to be ordered.
[112] The Respondent is to pay compensation of $4,672.80 to Mrs Kaur within 21 days of the date of this decision. An order to that effect will now be issued.
Appearances:
Mr David Singh, for the Applicant.
Ms Clarrissa Bennett, from the Respondent.
Hearing details:
2019.
Perth:
August 6.
Printed by authority of the Commonwealth Government Printer
<PR711212>
1 Exhibit R4.
2 Exhibit R3.
3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
4 Ibid.
5 PN339.
6 Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [39].