| [2019] FWC 8283 [Note: This decision has been quashed - refer to Full Bench decision dated 6 February 2020 [2020] FWCFB 550] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lucinda Vennix
v
Mayfield Childcare Limited
(U2019/3398)
COMMISSIONER YILMAZ |
MELBOURNE, 6 DECEMBER 2019 |
Application for an unfair dismissal remedy.
[1] On 26 March 2019, Ms Lucinda Vennix (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Mayfield Childcare Limited (Respondent). The Applicant worked at the Grand Oaks Childcare Centre when her employment was terminated. The Applicant seeks reinstatement and/or compensation.
[2] The uncontested factual background to the matter is as follows:
• In 2016, Mayfield Childcare Limited purchased the Grand Oaks Early Learning Centre in Lilydale where the Applicant was employed as Assistant to the Centre Manager.
• The Applicant worked for the Respondent from November 2016 to 5 March 2019 as an Early Childhood Centre Manager at the Grand Oaks Early Learning Centre.
• The Applicant’s employment was subject to the Children’s Services Award 2010 (the Children’s Award).
• The Applicant had worked in the early childhood sector for nearly two decades.
• As the childhood Centre Manager, the Applicant also held the responsibility of ‘Responsible Person’ and she signed the Agreement confirming this on 28 November 2016. The Applicant subsequently signed a consent form to be the ‘Nominated Supervisor’ on 11 January 2017.
• On 22 March 2018, there was an incident at the Centre when a child was fed something he should not have, and on 25 May 2018, the Applicant was issued with a formal warning in relation to the incident.
• The Respondent’s new State Operations Manager and Area Manager visited the workplace on 6 and 12 February 2019 which culminated in the decision to introduce a performance improvement plan for the Centre, including the removal of the Applicant’s office support person, and direction that she market/ promote the Centre in the local area.
• On 12 February 2019, when the Applicant informed her staff of the decisions made by management, she was advised that a parent raised a concern regarding the manner in which a child was handled by a casual carer.
• The Applicant’s employment was terminated on 5 March 2019.
[3] I conducted a hearing on 17 July 2019. The Applicant was represented by United Voice and the Respondent sought to be legally represented.
[4] Relevantly, section 596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
[5] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the Act. 1
[6] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[7] Mr Daly of Duncan McLean & Associates sought leave to appear for the Respondent. The Applicant’s Representative objected, submitting that DJMIR Advisory Services was already the Respondent’s Representative. Mr Daly submitted that DJMIR had represented the Respondent during conciliation and that he would represent the Applicant in the hearing and prepare final written submissions.
[8] The only application for leave to appear before me was Mr Daly’s and having considered the submissions regarding representation, including the objection raised by United Voice, I determined to allow the Respondent to be represented to enable the matter to be dealt with more efficiently.
[9] The Applicant gave evidence on her own behalf and Mr Sheldon Luke Oski, lead industrial officer at United Voice, also have evidence on behalf of the Applicant.
[10] Ms Kathy Kliakos, Area Manager, gave evidence on behalf of the Respondent.
[11] The Respondent raised an objection to the witness statement of Mr Oski on the basis that he was also the Applicant’s Advocate. Under s.591 of the Act the Commission is not strictly bound by rules of evidence and procedure. In terms of the objection raised, I accept there may be times that such an objection would raise proper considerations, however, in this matter, the evidence of Mr Oski did not deal with any serious disputed question. Mr Oski attended both the disciplinary meeting on 4 March 2019 and outcomes meeting on 5 March 2019 as her support person. Mr Oski’s statement 2 detailed his recollections of the two meetings. The detail of the recollection of the meetings was not in dispute between the parties.
[12] Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[13] Both subsections must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
Under section 396 of the Act, I am obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[14] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.
Minimum employment period
[15] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
[16] It was not in dispute and I find that the Applicant was an employee, who commenced her employment with the Respondent in November 2016 and was dismissed on 5 March 2019, a period in excess of the minimum of six months.
[17] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Modern award coverage
[18] It was not in dispute and I find that, at the time of dismissal, the Applicant was covered by the Children’s Award.
[19] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Application of the Small Business Fair Dismissal Code or genuine redundancy
[20] As mentioned above, the Respondent was not a small business employer within the meaning of s.23 of the Act at the relevant time. I am therefore satisfied that the Small Business Fair Dismissal Code does not apply.
[21] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[22] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.
[23] There was no dispute that the Applicant was terminated at the initiative of the employer, as evidenced her letter of termination dated 5 March 2019.
[24] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.386 of the Act.
[25] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I 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 Commission considers relevant.
[26] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 3
[27] I set out my consideration of each below.
[28] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 4 and should not be “capricious, fanciful, spiteful or prejudiced.”5 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.6
[29] Where a dismissal relates to an employee’s conduct, I must be satisfied that the conduct occurred and justified termination. 7 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”8
[30] On 18 February 2019 the State Operations Manager instructed the Applicant in writing, 9 to attend a meeting on 19 February 2019, to investigate and discuss an incident that occurred, as well as the Applicant’s conduct as Nominated Supervisor and Centre Manager. The notice of meeting confirms the incident relates to an allegation that a casual educator handled a child physically. The notice of meeting letter further states that “it is an investigation meeting; however, you should be aware that the outcome of the investigation may lead to disciplinary action up to and including termination of your employment.”10
[31] The letter of termination of employment stated the reason for the termination was:
“Upon reviewing your response and finalising our internal investigations, it has been concluded that you, as the Nominated Supervisor, were in breach of:
• The Education & Care National Regulations
• The Education & Care Services National Law
• The Early Childhood Australia Code of Ethics
• Mayfield Childcare’s Policies and Procedures
It is the opinion of Mayfield Childcare Limited that your negligent actions included:
• Failure to notify the Area Manager and/or Approved Provider of an allegation that was made in relation to the health, safety and wellbeing of a child at the service, within the required timeframe
• Failure to notify the Area Manager and/or Approved Provider of a compliant within the required timeframe
• Failure to follow Mayfield Childcare’s policy and procedure in relation to a complaint being made
• Failure to act with due consideration or care at the time of, or after the incident
• Failure to ensure that in your role as Nominated Supervisor, children are adequately supervised, are not subject to inappropriate discipline, and are protected from harms and hazards” 11
Submissions
[32] The Applicant submits that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct because the Applicant failed to comply with the “formal requirements in the Respondent’s policies and procedures that she notify her Area Manager in writing within 24 hours. The Applicant contends she did notify her Area Manager verbally within 24 hours, and that she subsequently reported and investigated the complaint appropriately” 12.
[33] The “complaint” relates to a complaint made by a parent about an educator grabbing a child by the arm. The Applicant while giving evidence acknowledged her error that she did not notify her Area Manager of the complaint in writing consistent with the Centre’s policy.
[34] The Applicant submits and the Respondent confirmed through their witness 13 that the Centre was not fined or penalized, and further the child was not harmed.14
[35] The Respondent submits that there was a valid reason for the dismissal related to the Applicant’s capacity or conduct because she failed on two occasions to notify her employer of serious reportable incidents, which were her legal requirements set by legislation and regulation. 15
Evidence
[36] The Respondent submits and the Applicant confirmed, that her role as Centre Manager was the most senior role in the Centre, she held the role since 2016, and the Respondent’s witness confirmed that the incident in February 2019 was a reportable incident. 16
[37] The Applicant received a job description in June 2018, some 18 months after commencing employment in the role of Centre Manager. The job description refers to obligations to have a working knowledge of legislative and regulatory requirements, the policy handbook, code of ethics, parent handbook and associated documentation. 17 There was no evidence that any of the materials were provided to the Applicant to ensure she was aware of her obligations.
[38] The Respondent submitted in evidence a copy of the contract of employment dated 28 November 2016 which is unsigned by both parties. Other than a broad statement that the employee must perform her duties in line with relevant legislation, regulation, policies and code of conduct, there is no detail concerning specific obligations relating to type of matters requiring reporting or the conditions attached to the reporting obligations.
[39] Also submitted and dated 28 November 2016, is a signed consent form to act as a ‘Responsible Person’ at the Rose Garden Childcare and Kindergarten in the absence of the ‘Nominated Supervisor’, when required. The Responsible Person Agreement contains a declaration which includes the statement “I will uphold the National law and Regulations, Policies, Procedures, Philosophy and Code of Conduct of the service while acting in this role”. 18 The document is marked as Attachment C, but there is no information provided to clarify what the document was attached to.
[40] The Applicant was subsequently asked to sign a Nominated Supervisor Consent Form. 19 This form was signed and dated by the Applicant on 11 January 2017. The Applicant submits she was asked to sign the form without any discussion concerning what the role required. It is also apparent that the form was completed by a person other than the Applicant except for the section under supervisor declaration.
[41] The Applicant admitted that appointment to the role of Centre Manager was new to her and she was excited to obtain the role. She admitted that she was not fully aware what she had signed and its implications. It was not disputed by the Respondent that the role was new to the Applicant.
[42] The Respondent’s witness, Ms Kathy Kliakos in her witness statement confirms her own experience as a centre manager including her current role of Area Manager, which includes the oversight of five services, this role entails assisting centre managers (where required) with staffing, educational program development, business development, financial reporting and operational performance outcomes. 20
[43] The Respondent’s witness stated that all staff underwent yearly child protection training through Child Wise, but no evidence was submitted to show what the training entailed. The Child Wise website promotes training programs to assist centres working with children to recognise child abuse and appropriate responses.
[44] The Respondent submitted in evidence an information sheet on Nominated Supervisors and a extracts from the Education and Care Services National Law Act 2010 (Cth). 21 It is evident from this material that responsibility sits primarily with the Approved Provider (centre) to ensure all educators and staff who work with children are aware of the child protection law. Although the Nominated Supervisor and family day care educator also bear responsibilities to ensure children are protected from harms and hazards, that education is provided in accordance with the approved learning framework and children are not subjected to corporal punishment or discipline that is unreasonable.
[45] It is not alleged that the child was subjected to corporal punishment, nor any form of abuse. It was submitted the parent of another child reported that she had seen the educator handle the child harshly. The written report prepared by Ms Vennix is that the parent stated that she saw the educator grab the child by the arm to sit her down after she did not follow instructions to sit down.
[46] The evidence of the Area Manager in her statement of evidence describes the behaviour towards the child as inappropriate discipline and further she states that when she personally spoke to the parent, it was reported that the educator grabbed a visibly upset child by the arm and moved her. 22
[47] In the circumstances the Applicant must accept responsibility and she does in her witness evidence, when she admits with hindsight, she should have dealt with the situation differently.
Findings
[48] I find that:
• The role of Centre Manager is an important role responsible for all aspects of the Centre including staffing, the performance of the Centre and the development of children in a supportive and safe environment.
• The Applicant in her oral evidence admitted that much responsibility rests in her role, even though she did not take steps to inform herself of her obligations before taking on the role. The Applicant acted in the role for almost three years and had ample time to appraise herself of her obligations, particularly as she signed documentation attesting that she would comply with the relevant laws, regulations, codes, and policies.
• While it was not evident if the Applicant received materials concerning her obligations to comply with legislation, regulations, codes and policies, having been in the role for almost three years, it is reasonable to expect she would have familiarized herself given the level of responsibility that comes with the role.
• The Applicant while not directly responsible for the first incident where a child reacted to food that he should not have consumed, the outcome of her warning on that occasion should have been enough to alert her to the importance of promptly reporting the second incident in writing, even though she may have verbally informed her Area Manager.
• The Applicant was more consumed by management decisions affecting her position (performance improvement plan and removal of office support), rather than the potential seriousness of the second incident. The Applicant failed to promptly investigate the allegation to inform herself fully and she did not take the allegation that a child may have been mishandled seriously.
• The Respondent is not without responsibility and was quick to attribute full blame on the Applicant. I am satisfied that the Respondent knew of the Applicant’s limitations in her competency as the Centre Manager, and I am not satisfied that the Respondent provided the necessary information prior to and on commencement of employment of what the role entailed.
• I am satisfied that a verbal report of some sort was made to the Area Manager, and therefore action by the Respondent could have been more immediate to ascertain the relevant detail and assess its seriousness. After all, the responsibility for reporting of incidents to the relevant government department rests with the Respondent and not the Applicant.
• While the evidence of the child being moved by the arm, does not suggest it was as serious an incident to warrant a reason for immediate dismissal, the behaviour of the Applicant as the person in charge was poor.
• In evidence the Applicant stated that following the cous-cous/food incident, she talked to her staff, but no policy or direction was given in writing to the staff. This is of concern as a child was hospitalized and the Centre employs casual staff. I find that the Applicant failed to take appropriate action to ensure that such an incident should not occur again. At the same time, knowing the seriousness of the incident, the Respondent took no action either.
• The Applicant acknowledged that the care of the children is paramount to the centre and I find, that as the centre’s main representative this was lost on her, as she did not prioritise an allegation concerning the safety of a child ahead of how she was feeling.
[49] Having regard to the matters I have referred to above, I find that there was a valid reason for the Respondent to take disciplinary action related to the Applicant’s conduct. However, the reason given by the Respondent falls short of a valid reason for immediate termination for negligence. Under the circumstances I have given weight to evidence that the Respondent was aware of the Applicant’s shortcomings in the position, the role of the Area Manager to support centre managers, the expectation that centre managers are responsible and the lack of risk to the child’s safety and wellbeing involved in the incident. I am not of the opinion that the Respondent justified summary termination for misconduct.
[50] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 23 and in explicit24 and plain and clear terms.25
Submissions
[51] The Applicant submits that she was directed to attend a meeting where she could bring a support person to discuss a report that a child had been allegedly handled physically by an educator, and her response as the Centre Manager and Nominated Supervisor.
[52] The Respondent submits that the Applicant was notified of the reason for termination of employment on 5 March 2019.
Evidence
[53] The Applicant submits she formed the view that the direction to attend a formal meeting would most likely result in disciplinary action and possibly dismissal.
[54] When the Respondent refused to accommodate the Applicant’s request to postpone the meeting by two days to allow her to bring her nominated support person, she presented with a medical certificate when she attended the scheduled meeting on her own. The Respondent postponed the formal meeting due to the medical certificate, but retrieved from her, her credit card and laptop.
[55] Removal of the credit card and laptop was enough for the Applicant to form the view that her employment was to be terminated. She formed this view because neither the credit card nor laptop had been removed previously when the Applicant went on sick leave.
[56] The Respondent contends that it was not apparent when the Applicant would return to work, and it was reasonable in the circumstances to remove the resources. However, this reasoning is flawed as the Applicant’s medical certificate covered a period of four days, 19 to 22 February 2019.
[57] At the conclusion of the meeting, the Respondent informed the Applicant that it would advise her of the outcome.
[58] The Applicant was informed of the reason for her termination on 5 March 2019.
[59] Having regard to the matters referred to above, I find that the Applicant was notified of the reason for her dismissal when she was dismissed. The Applicant was not advised of the reason that would lead to dismissal prior to her termination of employment. The notes of the meeting provided in Ms Kilakos’ witness statement show that the Applicant was not advised that her employment may be terminated for misconduct, and she was not offered to show cause why her employment should not be terminated. 26
[60] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 27
[61] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly. 28 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements. 29
Submissions
[62] The Applicant submits that the Respondent had already determined to terminate her employment and did not discuss the possibility that the Applicant may return to work.
[63] The Respondent contends that the Applicant was invited to a meeting to respond.
[64] Having regard to the matters referred to above, I find that the Applicant was given an opportunity to respond to an incident at the Centre and her reactions to it, although she was not informed that her behaviour may constitute negligence because she failed to provide a written report within required the 24 hour period. I find that it is reasonable that the Applicant formed the view that the Respondent determined to terminate her employment prior to the meeting.
[65] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[66] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 30
Submissions
[67] The Applicant submits that the Respondent unreasonably refused to reschedule the meeting to allow the Applicant to have her chosen support person present. Further the Applicant submits the Respondent provided no explanation why her request to reschedule the meeting was denied.
[68] The Respondent submits that it did not unreasonably refuse to allow the Applicant to have a support person present at the investigation meeting and submits it could not reschedule the meeting. The Respondent further submits that the Applicant’s representative was her advocate.
Evidence
[69] On 18 February 2019, Ellen Porter the State Operations Manager directed the Applicant to attend a meeting on the following day at 10.30am to “investigate and discuss concerns that [she had] regarding and incident that took place at the service on the 8th of February, as well as [the Applicant’s] response and conduct as Nominated Supervisor and Centre Manager.” 31 The letter goes on to state “that this is an investigation meeting, however, you should be aware that the outcome of the investigation may lead to disciplinary action up to including termination of your employment.”32 This Notice of Meeting was emailed to the Applicant at 10.15am on Monday 18 February 2019.
[70] At 11.04am the Applicant emailed the State Operations Manager in response to the scheduled meeting and advised that her union representative could not attend and requested the meeting be rescheduled for Thursday morning at the same time.
[71] At 1.01pm the State Operations Manager refused the request to accommodate the attendance of the union representative. The Applicant again restated her request and again it was denied. 33
[72] The Respondent also received correspondence from United Voice on the same day requesting the meeting be rescheduled.
[73] When the Applicant arrived alone for the investigation meeting, she presented a medical certificate stating she is unfit for her usual occupation for the period 18 – 22 February 2019. The Applicant was then advised that the meeting would be rescheduled when she was fit to return to work.
[74] Ultimately when the meeting was rescheduled, the Applicant had present with her, her representative from United Voice.
[75] There was no evidence that the Applicant’s support person acted as her advocate at either meeting.
Findings
[76] I find that:
• While ultimately the Applicant’s support person was present at both the investigation and termination meeting, the Respondent refused a reasonable request to reschedule the meeting by two days.
• There was no reasonable explanation given why the meeting could not be rescheduled and given the graveness of the meeting as articulated in the letter, it would not have been unreasonable to reschedule.
• The Applicant selected a representative from her union, which is entirely acceptable. The Respondent refused to reschedule to allow the Applicant to have her support person of her choice. This amounted to a refusal to allow a support person.
[77] The Respondent terminated the Applicant’s employment summarily the day after the investigation meeting. The incident for which the investigation took place did not result in a warning.
[78] The Applicant provided in her Form F2 background information that included an incident resulting in a warning in 2018. Nevertheless, the Applicant submits that this consideration is a neutral factor.
[79] In final submissions from the Respondent, it is submitted that the Applicant was warned of unacceptable performance, and in any event the failure of the Applicant “to report incidences is not a trivial breach and as such the acknowledged misconduct of the Applicant can only be seen as serious” 34. This warning was considered relevant in the Respondent’s final submissions to support the decision to terminate the Applicant’s employment.
[80] 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. 35
Submissions
[81] The Applicant submits that she had not been warned about the unsatisfactory performance prior to dismissal on the basis that the incident in 2018 occurred prior to the introduction of company processes for reporting. It is further contended by the Applicant that senior management assess the nature of any complaint and or report to ascertain whether it is a reportable incident to the Department.
[82] The Respondent submitted that the Applicant had been warned about her unsatisfactory performance prior to dismissal. It also contended that the Applicant had known of her obligation to report complaints within a 24-hour timeframe.
Evidence
[83] It was uncontested that on 6 and 15 February 2019, the Operations Manager and Area Manager met with the Applicant to conduct a routine visit and it resulted in the development of a performance improvement plan for the Centre dealing with compliance (blocked emergency exists, procedure relating to child attendances), the office being in disarray and cleanliness of the Centre.
[84] The Respondent provided no evidence of warnings to the Applicant other than the incident in 2018.
[85] The Respondent was verbally informed that an incident occurred, it was not provided with a written report within 24 hours.
Findings
[86] I find that:
• The Applicant was not warned that her inaction in reporting complaints and or incidences in writing within a 24-hour timeframe will result in her immediate termination of employment.
• The Applicant was not genuinely given the opportunity to explain why she should not be terminated summarily.
[87] Having regard to the matters above, I find that the Applicant was not warned of her unsatisfactory performance relating to the reason for her dismissal before her dismissal.
[88] Neither party addressed these considerations satisfactorily.
Evidence
[89] The Applicant submitted the annual report of the Respondent which confirms that the Respondent is not a small operator as it owns 20 long-day childcare centres, has produced returns to its shareholders and reports strong revenue, profit and overall performance results are positive. 36
[90] It is also apparent that the company has a team of experts to fulfil the company’s Mission and Vision which states:
“Mayfield Childcare’s vision is to ‘raise the bar’ in early childhood care. Our team continues to work tirelessly to build a philosophy and a method of implementation which ensures that each of our centres provides exceptional quality care and education.
Our vision is to develop a stimulating environment and a culture of continuous learning for both the children under our care and our team of dedicated educators.” 37
Findings
[91] The Respondent was aware the Applicant was not coping which is why a performance improvement plan was introduced. Despite the deficiency of the Applicant to manage the Centre to their standards, there was little support given. Rather, the administrative support that the Applicant had was removed on the grounds that the Centre did not meet occupancy levels. It was also evident that the Applicant was unable to make decisions regarding reporting and management of staff without the Area Manager’s support and guidance.
[92] I find that the size and resources of the business means it was open to ensure the process of termination was fair. Despite its size and resourcing, I find there was a lack of procedural fairness afforded to the Applicant.
[93] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Submissions
[94] The Applicant submits the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:
• The Applicant had a long and unblemished record.
• The warning given to the Applicant in 2018 was unfair as she was not afforded an opportunity to respond to the allegations and the warning was invalid as she followed procedures in place at the time. Further the warning was given two months after the incident.
• The financial impact on the Applicant.
[95] The Respondent submits that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:
• The matter is one where the Applicant failed to follow lawful directives from her employer and government regulations.
• The plan introduced to improve the Centre was seen as the employer setting her up, even though the Applicant conceded that elements of the plan were reasonable.
[96] I consider that the following matters are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable:
• The Applicant by her own admission was overwhelmed by the position as it was a step up in her career to manage a large centre and it was the first time, she was to be a Nominated Supervisor.
• Despite not having the competency when she assumed the role, it appears that the Applicant did not ultimately meet the required competency for the role.
• Access to limited training was encouraged, which included the government provided online training relating to child protection. There was no evidence presented that the online training addressed relevant elements to ensure the Applicant understood her role and obligations.
• There is no contention that the Applicant was not provided with support to build her capacity and competence, nor was she provided with specific support or training to conduct employment related management tasks.
• The Area Manager approved all rosters and while the Applicant admitted she had the authority to terminate the employment of the carer involved in the incident, it appears she lacked any skill to perform the task.
•
• The Respondent’s reference to laws, regulations, codes of practice and the employer’s policies that the Applicant must comply with are broad statements, and little evidence concerning the detail of those obligations was provided in the course of proceedings.
• The Respondent relies on the performance improvement plan to reason that it was a reasonable action, yet the plan was not submitted in evidence.
• The Applicant assumed a role that required the safety and care of children as a priority, however, she placed her own feelings concerning how she was managed ahead of the responsibility towards the children in her Centre.
• While the Applicant had the care of her grandchild which was why she had to leave the Centre at a specified time, she had ample opportunity to prioritise her tasks to prepare a report and investigate the incident further. On this occasion she did not. Should she have been pressed for time before leaving the Centre, it was unclear why she would check emails during in her private time, yet when an incident is reported to her that may have serious consequences she did not make a report to her Area Manager.
[97] I find that should the Applicant not gain the satisfactory competency in the role, her employment would have been terminated. However, the Respondent knew of the Applicant’s shortcomings and despite the resources on hand it did not take steps to support her development or consider an alternative role given her experience in the industry.
[98] I have made findings in relation to each matter specified in section 387 as relevant.
[99] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.
[100] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh or unreasonable.
[101] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.
[102] I may, subject to the Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
[103] Under section 390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
[104] The Applicant submits that reinstatement is not appropriate because there has been a loss of trust and confidence in the employment relationship.
[105] The Respondent also submits that reinstatement is not inappropriate.
[106] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
[107] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 38
Submissions
[108] The Applicant submits that payment of compensation is appropriate because reinstatement is inappropriate and the effect of an order for compensation will have no effect on the viability of the ASX listed company.
[109] The Respondent submits that payment of compensation is not appropriate because the Applicant found the position difficult and any longevity in employment could not be determined. Further, the Respondent submits that based on her experience the Applicant should be capable of finding alternative employment. The Respondent submits sample positions advertised on Seek to illustrate the state of the employment market in childcare.
Findings
[110] I find that in all the circumstances, I do not consider that payment of compensation is appropriate because the Applicant was out of her depth in the role of Centre Manager. While her experience in the sector is substantial, her experience in managing a centre, its liabilities, and responsibilities was not at a standard required by the Respondent. It is evident the Applicant did not have the required competency to perform the role dependably without support by the Respondent.
[111] Given its size and resources, I find the Respondent managed the appointment and employment of the Applicant inadequately. Given the level of experience in the childcare sector and the Applicant’s admission that her priority is her private care obligations, I am of the opinion that there is limited scope that the Applicant would have maintained enduring employment in the role as Centre Manager.
[112] I therefore decline to order any remedy, notwithstanding that I found the Applicant was a person protected from unfair dismissal and had been unfairly dismissed.
COMMISSIONER
Appearances:
Mr S Oski on behalf of the Applicant
Mr M Daly on behalf of the Respondent
Hearing details:
2019
Melbourne.
17 July
Final written submissions:
9 August 2019.
Printed by authority of the Commonwealth Government Printer
<PR714935>
1 Warrell v Fair Work Australia [2013] FCA 291.
2 Exhibit A1.
3 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
4 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
5 Ibid.
6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
7 Edwards v Justice Giudice [1999] FCA 1836 at [7].
8 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23]-[24].
9 Exhibit R1 at MAY-10.
10 Ibid.
11 Exhibit R1 at MAY-19.
12 Applicant’s Outline of Submissions at [40]; Applicant’s Final Submissions at [5].
13 Transcript of proceedings at PN679 – PN683.
14 Applicant’s Final Submissions at [5].
15 Respondent’s Final submissions at [4]-[5].
16 Transcript of proceedings at PN111-PN115.
17 Exhibit R1 at MAY-5.
18 Ibid at MAY-2.
19 Ibid at MAY-3.
20 Ibid at [2].
21 Exhibit R1 at MAY-4, MAY-17; MAY-18.
22 Exhibit R1 at [30].
23 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
24 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
25 Ibid.
26 Exhibit R1 at [49].
27 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [75].
28 RMIT v Asher (2010) 194 IR 1 at [14]-[15].
29 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
30 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
31 Exhibit R1 at MAY-10.
32 Ibid.
33 Ibid at MAY-11.
34 Respondent’s Final Submissions at [86].
35 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
36 Applicant’s Outline of Submissions at Attachment B.
37 Applicant’s Outline of Submissions at Attachment B.
38 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [9].