Cohen v Orient Trading Pty Ltd
[1996] IRCA 228
•31 May 1996
DECISION NO: 228/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - SERIOUS MISCONDUCT - VALID REASON - complaint of abuse within child care centre - whether complaints made out - whether procedural fairness accorded.
Industrial Relations Act 1988 ss.170DB, 170DC, 170DE, 170EA
CASES: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
Sangwin v Imogen Pty Ltd (von Doussa J, 8 March 1996, unreported)
Puccio v Catholic Education Office & Anor. (von Doussa J, 17 May 1996, unreported).
KAYE LYNETTE COHEN -v- ORIENT TRADING PTY LTD
No. VI 5798 of 1995
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 31 May 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5798 of 1995
B E T W E E N :
KAYE LYNETTE COHEN
Applicant
AND
ORIENT TRADING PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Murphy 31 May 1996
THE COURT ORDERS:
That the application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5798 of 1995
B E T W E E N :
KAYE LYNETTE COHEN
Applicant
AND
ORIENT TRADING PTY LTD
Respondent
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 31 May 1996
REASONS FOR JUDGMENT
In this application under s170EA of the Industrial Relations Act (“the Act”) the applicant sought compensation following the termination of her employment by the respondent on 14 November 1995. The respondent admitted that it had terminated her employment but said that this occurred on 31 October after it had put a number of allegations of misconduct to the applicant. The issues in the proceedings were whether the respondent had a valid reason to terminate the applicant’s employment, whether the applicant had been accorded procedural fairness, and if a breach of the Act was proved, the quantum of compensation.
Background
The applicant is a qualified kindergarten teacher who commenced employment with the respondent on 27 June 1995. In evidence was a written contract of employment detailing the conditions of her employment dated 25 August 1995 (Exhibit R2). The respondent conducts a child care centre on the outer eastern fringes of Melbourne. At the time of these events the applicant, who was aged 49, was the most qualified employee of the centre. The respondent only commenced operating shortly prior to the applicant joining it and its director was Ms Barbara El-Hissi. Ms El-Hissi is from Poland and holds educational qualifications from Potzdam University.
Events giving rise to the termination
On 28 August Ms El-Hissi was advised by two parents that their respective children, Luke and Jonathan, who were at the centre, had bruises on their upper arms consistent with fingermarks. Ms El-Hissi was advised that the applicant was apparently responsible for the bruises. She inspected the arms of the children to confirm bruising. She told the applicant of the complaint. She told her that such conduct was unacceptable and she was not to “do it again”. The applicant denied any responsibility.
On 13 October the mother of Jonathan, who worked part-time at the centre, reported to Ms El-Hissi that the applicant had hit her son on his back. Ms El-Hissi took the parent of the child and the applicant to the staff room. She told the applicant that the conduct was unacceptable. The applicant denied any responsibility. Ms El-Hissi recorded these two incidents, as they occurred, on a sheet of paper in the applicant’s file.
Ms Julie Groves, a qualified primary teacher and at the time a casual employee with the respondent, gave evidence that on 13 October she was approached by the child Jonathan with similar information to that just mentioned. She later observed a red mark on the child’s lower back. She did not raise this incident with the applicant at the time but raised it with Ms El-Hissi on 16 October. She further said that on 17 October she observed the child Jonathan, who was having a tantrum on the floor, kick at the applicant, who had kicked back at him. Ms Groves gave evidence of another incident around that time when she saw the applicant hold a child Stacy by the wrist and pull her across the floor on her knees. Ms Groves did not raise the latter incidents with the applicant as she was only new to the centre and found it hard to confront someone she had to work with.
Two other employees of the centre gave evidence of incidents involving improper conduct by the applicant. Ms Julie van Tinteren is a qualified Level 3 child care teacher and holds a Diploma of Social Sciences in Child Care. She gave evidence that in late August or early September, she witnessed the applicant strike a child Geoffrey, after that child had hit another child. On 27 September she observed the applicant slap the face of a child James while she was holding him on her lap. Ms van Tinteren said that she did not raise these matters with either the applicant or Ms El-Hissi at the time, as the applicant was more senior than her and she was new to her position.
Louise Mellenhorst, a qualified Level 2 Child Care Worker, commenced working as a full time assistant at the respondent in late July. She worked with the applicant. She gave evidence that in early October 1995 she had witnessed the applicant grip a young child’s forearm extremely tightly with her fingers, causing blood to be drawn. Ms Mellonhorst testified that when the applicant saw that Ms Mellonhorst had seen what happened, she said her to “you didn’t see that did you”. Ms Mellonhorst’s response was “see what?”. Ms Mellenhorst did not raise the matter with the applicant or Ms El-Hissi at the time.
In late October Ms van Tinteren, who had heard from Ms Groves of the incident involving the bruise on Jonathan’s back, and of the kicking incident, went to Ms El-Hissi asking that action be taken. Ms El-Hissi then arranged to question each of the staff at the centre, and obtained evidence that the applicant had hit one child and was very rough with the children.
The meeting of 31 October
Ms El-Hissi gave evidence that after she obtained information from the various staff members she determined to raise the matters with the applicant at a staff meeting. That meeting took place at 7.00 p.m. on 31 October 1995. The applicant denied being present at the meeting. Ms El-Hissi, Ms Groves and Ms van Tinteren said they were at the meeting with the applicant. Another employee, Karen Best, who did not give evidence, was also at the meeting. Ms Groves said she came in especially for the meeting as she was not working that day. Ms Mellonhorst was not at the meeting. She said that she decided not to go to the meeting as she worked directly with the applicant and felt it would have been extremely hard to work with her the following day after being involved in raising matters with her at the staff meeting.
Ms El-Hissi said that at the meeting each of the staff members present, namely Ms van Tinteren, Ms Groves, and Ms Best, put the various matters to the applicant. The applicant denied any improper behaviour. She further told them that matters should have been raised with her at the time.
After the meeting Ms El-Hissi took the applicant aside. She asked the applicant whether she had any comment on the issues discussed. The applicant responded by denying all incidents. She advised the applicant that the matters raised were very serious, that she had found some gaps in her resume, “I told her that she is dismissed”.
The applicant had contacted her a couple of days later in order to arrange to collect some personal equipment from the centre and the balance of her pay. She had collected the equipment on 3 November. Ms El-Hissi had made up her pay. She had not paid the applicant for any time after 31 October. The applicant had claimed that she was entitled to be paid for the period until the end of the pay week, an extra three days. The applicant had noted on the final pay slip “3 days short”. Ms El-Hissi had advised the applicant that she would contact Jobwatch to ascertain whether the money was due.
Ms Groves gave evidence that she was contacted after the meeting and offered a permanent casual position at the centre, commencing 1 November. On 9 November the respondent advertised for a replacement for the applicant. On 14 November the applicant contacted Ms El-Hissi. Ms El-Hissi said at that stage she advised the applicant that she would not be paid any further wages. Subsequently in December her outstanding annual leave was sent to her.
The applicant’s account
The applicant’s account of the circumstances leading to her termination was dramatically different from that given by the witnesses for the respondent. The applicant denied each of the instances of alleged improper behaviour raised in the evidence and that the respondent said were raised at the meeting of 31 October. The only incident involving a child that the applicant admitted having discussed with Ms El-Hissi involved the child Jonathan. She said that she had advised Ms El-Hissi on 27 October that another child Jessica had struck the child Jonathan while the children were waiting in line. She had asked Ms El-Hissi to enter the matter in the accident book. Ms El-Hissi denied this. The applicant said that this matter was raised again on 30 October.
The applicant denied being present at the meeting of 31 October. The applicant’s account of events on that day was that two parents at the centre complained that the applicant had failed to offer their children a drink for lunch. They then approached Ms El-Hissi and threatened to withdraw their children, a total of seven, from the centre, unless the applicant ceased working there. The applicant maintained that she was told by Ms El-Hissi that she had to go on leave for a few days, until the matter was sorted out. Subsequently she was told by Ms El-Hissi that she would have to take leave for two weeks. After she saw the advertisement for her job in a newspaper on 9 November, she contacted Ms El-Hissi on 14 November and was then told that she had been dismissed.
Issues of credit and conflict
An important matter going to the applicant’s credit was the time she left the premises on 31 October. It was put to the witnesses Ms El-Hissi, Ms van Tinteren, Ms Groves and Ms Mellonhorst that the applicant had left the premises at 3.00 p.m. that day. Subsequently Ms van Tinteren produced the attendance book for that day (Exhibit R5) indicating that the applicant had signed out at 6.05 p.m. Under cross-examination the applicant admitted that she may have left the centre at 5.00 p.m. She refused to concede that she had left at 6.05 p.m. She accepted that the signature was in her writing but said the time entry might not be hers.
This was not the only issue on which her evidence differed from what was put to the respondent’s witnesses in cross-examination. Although all the instances of improper treatment were challenged in cross-examination, two instances were not directly challenged. The first was the alleged kick by the applicant, directed at Jonathan. The witnesses for the respondent, Julie Groves and Louise Mellonhorst, both said that they saw the applicant kick the child. The applicant maintained that she only pretended to kick the child, yet it was not put to the respondent’s witnesses that they were fabricating their evidence that the child was distressed and crying as a result of the kick inflicted by the applicant. The evidence of Ms Groves that she saw the applicant pull a child in a distressed state on her knees across the floor, was not challenged. The account the applicant gave which provided an innocent explanation for what Ms Groves said was inappropriate behaviour, smacked of recent invention.
Ms El-Hissi gave evidence that the applicant had taken her personal property from the centre on 3 November. This evidence was not challenged yet in her evidence the applicant maintained that she took her property from the centre on 31 October. The fact that she did take her personal property from the centre is support for the respondent’s version that her employment had been terminated.
There were aspects of the documentary evidence of both parties of concern. The handwritten warnings (Exhibit R4) that Ms El-Hissi recorded after the incidents on 28 August and 13 October had an appearance that they may not have been contemporaneous with the events. The original document was not produced, but a facsimile copy bearing the date 8 December 1995 was produced. Ms El-Hissi, on the second day of the hearing, produced a hand-written file note (Exhibit A3) dated “26.10.96” of her discussion with Ms van Tinteren in relation to her observations of the applicant with the children Geoffrey and James. Ms El-Hissi was unable to explain why, in two parts of that document, the date is a year out.
The applicant produced records that she said she kept in relation to a child Jessica. Those records record that on “27/10/94” Jessica had “punched (Jonathan) in back whilst in line for lunch. Reported to Barbara.” That entry is in a different coloured pen from other entries on the same page, and appears to have been added later.
There were a number of issues explored in the evidence that were of very limited relevance. Cross-examination of the respondent’s witnesses sought to show educational and other differences in approach between the applicant and the respondent’s employees. These differences were said to provide a motive or explanation for the respondent to take the actions the applicant alleged it took. The differences were of emphasis only and were not sufficient to suggest a basis for the respondent to wish to rid itself of the applicant.
One matter relied on by the respondent was the applicant’s resume (Exhibit R1) that she had presented to Ms El-Hissi when she was appointed. The document fails to mention two short term positions in child care centres held by the applicant. Ms El-Hissi said that by the time the applicant was terminated she had ascertained that there were some gaps in her resume. She had mentioned this to the applicant after the staff meeting on 31 October. In that conversation Ms El-Hissi advised the applicant she “found some gaps in her resume”. The applicant admitted that she had been given notice of termination from a child care centre. This was not referred to in the resume. She said the notice had been given after she had told the centre she was going to leave.
This matter is of only limited significance but the applicant’s admission on this point reflects favourably on the credit of Ms El-Hissi.
Findings on the evidence
There was no common ground between the evidence of the applicant and that of the respondent’s witnesses in relation to the alleged incidents of improper conduct with the children. There was also no common ground between the parties in relation to whether or not the applicant was present at the meeting of 31 October. The occurrence of the meeting and the presence of the applicant at the meeting is central to the respondent’s case that it had a basis to dismiss the applicant and that it had accorded her procedural fairness. Three witnesses of the respondent indicated that the applicant was present. Ms Mellonhorst was not present but provided an explanation for her absence. Ms Groves dated her permanent position from the day after the meeting. The credit of both the applicant and Ms El-Hissi was damaged by the documentary material referred to above. None of the parents were called.
The applicant would have the Court accept that all four witnesses of the respondent are fabricating this aspect of their evidence in relation to the meeting of 31 October. The shifting evidence of the applicant in relation to the time she left the centre on that day is, however, relevant to this issue. It was first put that she left at 3.00 p.m. Later in her own evidence she acknowledged that she was at the centre closer to the time of the meeting. The attendance book has her signing off at 6.05 p.m., close to the commencing time of the meeting. This contemporaneous record supports the respondent’s version that the crucial events occurred after the centre closed for the day.
There is an internal consistency in the respondent’s version of events of that date. It seems unlikely that two families would threaten to leave the centre just because the applicant failed to offer their children a drink at lunchtime on that day. Further, despite the inconsistencies between the parties, the applicant agreed that the issue of an injury to the child Jonathan was raised around the end of October 1995.
Next, the applicant’s evidence that she took from the centre her personal property is consistent with her ceasing work for a significant period, if not permanently. Finally, the fact that the respondent advertised the applicant’s position on 9 November, prior to when the applicant alleges that she was told that she was dismissed, is consistent with the respondent dismissing the applicant prior to that time.
Having considered the competing accounts, and observed the demeanour of the witnesses, I prefer the respondent’s version of events in relation to the incidents over the course of the applicant’s employment, and the circumstances of her dismissal on 31 October. Although I do not accept Ms El-Hissi’s account of the notes of the conversation with Ms van Tinteren (Exhibit A3), the rest of her evidence was corroborated in significant respects by the respondent’s other witnesses.
I find that the respondent’s witnesses did observe instances of conduct that they regarded as unacceptable in the centre. Two of the instances resulted in warnings by Ms El-Hissi who diarised those warnings. Those matters, and a number of others were raised with the applicant at a meeting on 31 October. The applicant denied the substance of the matters raised. Subsequently she was given an opportunity by Ms El-Hissi to respond to what were described as serious allegations. She was then advised by Ms El-Hissi that her employment had been terminated.
I do not accept that the applicant’s employment was terminated for some other extraneous reasons such as the threatened withdrawal of children from the centre, or because of differences in approach between the various employees of the centre. I also do not accept her account that she was merely stood down on 31 October 1995.
Did the respondent have a valid reason to dismiss the applicant?
The respondent carries the onus of proof that it had a “sound, defensible or well-founded reason” connected with the conduct or performance of the applicant or based on its operational requirements to terminate her employment (see ss170EDA(1) and 170DE(1) and Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 374).
There are substantial similarities between the facts of this case and two recent decisions of the Court : Sangwin v Imogen Pty Ltd (von Doussa J, 8 March 1996, unreported) and Puccio v Catholic Education Office & Anor. (von Doussa J, 17 May 1996, unreported). In both those cases the Court focused on the investigation by the employer and the reasonableness of its belief that its operational requirements required the termination of an employee believed by the employer to have been guilty of misconduct. The court noted the need for an appropriate investigation to ascertain relevant facts, and then the need to put the matters of concern to the employee. Provided such a reasonable approach is taken and the employer holds an honestly held belief that its operational requirements require the termination of employment, then the employer has satisfied the requirements of s170DE(1) of the Act. von Doussa J said in Sangwin (above):
“An employer of a health worker or child care provider against whom was made an allegation of serious physical abuse that threatened the health and safety of those in that person’s care would be duty bound to act to protect those under care. If, after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct the employer would be in dereliction of duty to those in care if the employee were allowed to return to duty. Again, would not the employer have a sound or well founded reason connected with the operational requirements of the undertaking, establishment or service for terminating the operator’s employment even if, after dismissal, a tribunal or court held that it was not satisfied that the misconduct alleged had occurred, or that it did not occur?”
In Sangwin the employer was ultimately unable to satisfy the court that it had a sound reason. Puccio (above), in contrast, was a case analogous to the “health worker or child care provider” referred to as an example in Sangwin. The case dealt with a teacher dismissed for alleged misconduct. von Doussa J held that the respondent had a valid reason because he was satisfied that the inappropriate conduct alleged did in fact occur. He said:
“The school has a clear duty at law to take steps to guard its students against foreseeable risks adverse to their safety and welfare and will be held liable if it fails to do so and a claim is made against the school. So important is the duty of care resting on an employer where safety issues are involved, that the employer may have a valid reason relating to an employee’s capacity or conduct within the meaning of s170DE(1) of the Act to dismiss an employee even where reported misconduct is disputed by the employee: see Sangwin v Imogen Pty Ltd (Industrial Relations Court of Australia, von Doussa J, 8 March 1996).”
Here the matters brought to the attention of Ms El-Hissi were the subject of an investigation. That consisted of her interviewing each of the employees at the centre. It also included raising the matters with the applicant at the meeting of 31 October. I am satisfied that subsequent to that Ms El-Hissi formed the view that the operational requirements of the respondent, despite the denials by the applicant, required the termination of the applicant’s employment.
Adopting the reasoning in the two decisions referred to, I am satisfied that the respondent’s belief was honestly held and reasonably based. The respondent has met its obligations under s170DE(1) of the Act.
Procedural fairness
My preference for the respondent’s account of the events of 31 October 1995 makes any argument by the applicant that she was denied procedural fairness difficult to sustain. The allegations were put to her at the meeting, and then she was asked to comment by Ms El-Hissi after the meeting. There has been no breach of s170DC of the Act. If I am wrong about this and there were some procedural irregularities in the approach by the respondent, I adopt the following comments by von Doussa J in Puccio (above) when he discussed the possibility that the decision maker may have proceeded upon “allegations that were not admitted, or on other irrelevant material”:
“Even if I am wrong in that conclusion, it does not necessarily follow that because a shortcoming is demonstrated in the procedures followed by the employer to bring about the dismissal, that the dismissal occurred in contravention of the Act. If the established facts show that the employer had a valid reason for dismissal, and the fact of dismissal in all the circumstances is not harsh, unjust or unreasonable, there is no contravention even though the employer’s procedures are open to criticism: Byrne & Anor. v Australian Airlines Ltd (1995) 131 ALR 422 at 434, 462-464.”
Harsh, unjust or unreasonable
The applicant carries the onus of proof that her termination was harsh, unjust or unreasonable. Having regard to my preference for the respondent’s version of events, she faces great difficulty in discharging that onus. The reasoning in Sangwin (above) and Puccio (above) leads to the conclusion that given the applicant’s conduct, the termination of her employment cannot be characterised as disproportionate. The matters upon which the respondent acted are specifically referred to in the employment terms of the applicant (Exhibits R2 and R3).
Her conduct is properly characterised as misconduct at common law, and given the operational requirements of the respondent, it cannot be said to be harsh, unjust or unreasonable that she was terminated for that conduct. The applicant has not discharged her onus of proof under s170DE(2).
Although the matter was not adverted to by counsel for the applicant, I should also indicate that the respondent has not breached s170DB(1) of the Act. As I have said the applicant’s conduct was misconduct at common law and in direct and serious breach of her “Conditions of Employment” (Exhibit R2) and the Rules of the centre (Exhibit R3). The respondent was therefore entitled to terminate her services without notice.
The applicant has not made out any breach of the Act. The application must be dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
The application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.
Associate:
Dated: 31 May 1996
Solicitors for the Applicant: Jeff Lempriere-Hogg & Associates
Counsel for the Applicant: Mr R Halliday
Representative for the Respondent: The Victorian Hospitals’ Industrial Association
Appearing for the Respondent: Mr G Szlawski and Ms M Fitzherbert
Date of hearing: 9 May 1996
Date of judgment: 31 May 1996
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