Curatolo v Skye Children's Co-Operative Ltd
[2015] FCA 14
•27 January 2015
FEDERAL COURT OF AUSTRALIA
Curatolo v Skye Children’s Co-Operative Ltd [2015] FCA 14
Citation: Curatolo v Skye Children’s Co-Operative Ltd
[2015] FCA 14Parties: LYNETTE CURATOLO v SKYE CHILDREN'S CO-OPERATIVE LTD, MYHA HUYNH and ZEE PAREKH File number: VID 367 of 2014 Judge: JESSUP J Date of judgment: 27 January 2015 Catchwords: INDUSTRIAL LAW – adverse action – employee ostensibly dismissed for misconduct – whether reasons for dismissal included her position as a union member, that she exercised a workplace right or that the union exercised a workplace right on her behalf Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 346, 360, 361, 487
Fair Work (Registered Organisations) Act 2009 (Cth)Cases cited: Bendigo Regional Institute of TAFE v Barclay (2012) 248 CLR 500
Jones v Dunkel (1959) 101 CLR 298Date of hearing: 13-16 October 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 67 Counsel for the Applicant: Ms G Jardine Solicitor for the Applicant: McDonald Murholme Counsel for the Respondents: Mr J R M Tracey Solicitor for the Respondents: Minter Ellison IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 367 of 2014
BETWEEN: LYNETTE CURATOLO
ApplicantAND: SKYE CHILDREN'S CO-OPERATIVE LTD
First RespondentMYHA HUYNH
Second RespondentZEE PAREKH
Third Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
27 JANUARY 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 367 of 2014
BETWEEN: LYNETTE CURATOLO
ApplicantAND: SKYE CHILDREN'S CO-OPERATIVE LTD
First RespondentMYHA HUYNH
Second RespondentZEE PAREKH
Third Respondent
JUDGE:
JESSUP J
DATE:
27 JANUARY 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Until the events which became controversial in this proceeding, the applicant, Lynette Curatolo, was employed part time by the first respondent, Skye Children’s Co-Operative Ltd (“the respondent”) as an educator in the kindergarten room at the respondent’s child care centre at 9-11 Skye Street, Macleod, Victoria. She assisted Ratna Shahi, who was the lead educator in that room.
On 15 April 2014, the applicant’s employment was terminated without notice for misconduct. This step was taken, on behalf of the parents’ Committee of Management (“the committee”), by Dr Rebecca Farrington and Amanda Adderley, two members of the committee. They dismissed the applicant from her employment at the conclusion of a meeting at which they had received the applicant’s responses, such as they were, to allegations of misconduct which had been made against her. The termination was confirmed the following day by letter to the applicant over the hand of Dr Farrington.
In this proceeding, the applicant alleges that her dismissal was unlawful under Pt 3-1 of the Fair Work Act 2009 (Cth) (“the FW Act”).
Until 13 November 2013, the director of the centre was Annabelle Moody. On that date, her position was made redundant, it having been decided to divide the responsibilities in question between two new positions. The circumstances of that event do not need to be explored, but it left the respondent without a director at the centre. For the ensuing period while the committee was engaged in the task of filling the new position of “Centre Leader”, the president of the committee, the second respondent Myha Huynh, acted in the position on an honorary basis. At this time, the applicant was employed on casual terms, as she had been since the commencement of her employment in 2008.
On 6 January 2014, the basis of the applicant’s employment was changed by the respondent, and she now became employed on a permanent, part time, basis. She was working three days per week. According to the evidence of Ms Adderley, this was part of a process in which a number of employees were moved from casual to part time in order to save the respondent the expense of casual rates of pay. In March 2014, the respondent arranged for the applicant to obtain a “Supervisor Certificate” qualification. As it was explained in the evidence, this permitted the applicant to be the person who opened the centre at the start of each day and who closed it at the end of each day. Ms Huynh said that the applicant was on “rotational shift”, and the respondent needed someone on rotational shift to open and to close the centre.
On 21 February 2014, the Vice President of the committee, the third respondent, Zee Parekh, sent an email to the other members of the committee in which it was said that she had been told by her daughter that the applicant often whacked kids on their bottoms in the kinder room. She said that she had not seen it, nor heard it from other parents, but she was “a bit concerned as to how often this happens”. In her email, Ms Parekh asked, “Any suggestions????”. Ms Huynh was cross‑examined as to why this email, which was discussed at the next monthly meeting of the committee, was not the subject of some action. She said that, at the time, the respondent was without a Centre Leader, that the parents on the committee had neither the time nor the expertise to deal with “the HR side of it”, and that it was thought to be something which could be left to the new Centre Leader when one was appointed.
Also in February 2014, Ms Huynh drafted a letter in which she referred to something her daughter had said to her, namely, that the applicant smacked certain other children on “the bum” when they would not go to bed. The draft letter continued:
I was caught off guard by this conversation as I don’t expect her to witness something like this during a safe environment as a crèche where I trust and rely on staff to treat not just my child but other peoples [sic] children in an appropriate manner.
It has sicken [sic] me to know that a staff member, whether they lightly tap, wack [sic], smack, [or] touch someone else [sic] child under their care while the parents are not present.
The letter was not sent at that stage. In her evidence, Ms Huynh explained that the intended addressee of the letter was the new Centre Leader, and that she intended to pass the letter on to him or her upon appointment. So she allowed it to sit as a draft on her computer.
The applicant was unaware of the matters referred to in the two preceding paragraphs of these reasons.
At some stage, probably in about early March 2014, a small number of the respondent’s employees at the centre, including the applicant, became concerned about the uncertainty which existed in the management of the centre. It seems that these concerns were substantially related to the vacancy which existed in the director’s position. According to the applicant, the staff were finding out what was happening, or what was proposed, at the centre informally from parents, rather than from the committee which, at that time, was attempting to operate the centre without anyone occupying the senior executive position, whatever it be called. These few employees thought it would be a good idea to contact the trade union which had coverage of their occupation, United Voice, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth). I shall refer to it as “the union”. In the result, the applicant telephoned the union, and arranged for one of its representatives to meet with the employees at the home of one of them.
There was such a meeting. It was attended by Clay O’Brien from the union, the applicant, and three other employees of the respondent including the host and Ms Shahi. Mr O’Brien explained that he could arrange for someone to visit the centre under a “right of entry” authority, but it would be necessary for the union to have at least one member employed at the Centre. Two of those present, one of whom was the applicant, joined the union.
The union then arranged for a right of entry notification, under s 487 of the FW Act, to be given to the respondent. In the normal course, this came to the attention of Beverly Harris, a parent on the committee, and Ms Huynh, and other members of the committee, were notified by email. Pursuant to the right of entry notification, on 17 March 2014 Mr O’Brien attended at the centre and met with employees. As he recalls it, he “spoke to a handful of educators as they sort of came through on their lunch break”. The applicant was not one of them, as 17 March was not a working day for her. Mr O’Brien returned for a second meeting about a fortnight later.
The monthly meeting of the committee was held on 19 March 2014. The minutes of this meeting were not placed into evidence, a circumstance of which counsel for the applicant made much in her final submission. I shall return to that aspect. Under cross-examination, Dr Farrington said that it was mentioned at the meeting that some of the employees at the centre had joined the union, but the applicant was not identified as one of them. She could not recall any mention of the meeting which Mr O’Brien had had with employees at the home of one of them. This evidence was given carefully and conscientiously. There is nothing otherwise in the evidence which would contradict it. I accept this evidence by Dr Farrington.
By this stage, the respondent still had not appointed a new Centre Leader. However, the committee eventually appointed Kay Mondon (an educator and education consultant with more than 30 years’ experience in the industry) to that role, and she commenced work on 7 April 2014. On that day, Ms Huynh completed the letter which she had drafted in February (see para 7 above) by the insertion of a greeting (addressed to Ms Mondon) and of a sentence suggesting that the matter of her complaint should be discussed at the forthcoming committee meeting on 16 April 2014. On the same day, Ms Parekh forwarded what she described (in evidence) as her “formal” complaint against the applicant which she had foreshadowed in her email of 21 February 2014 to which I have referred at para 6 above. Elaborating on that email, Ms Parekh said that her daughter told her that the applicant whacked the children in the Kinder Room when they were naughty, mentioning four of them by name. Ms Parekh said that this disturbed her as a parent because she would not tolerate anyone whacking her child, “no matter what the circumstance[s]”.
Whether or not because of the actual receipt of the complaints referred to in the previous paragraph, it seems that the existence of the concerns held by Ms Huynh and Ms Parekh about the applicant came to the attention of Ms Mondon and of the respondent’s administrative officer at the centre, Bev Harris. Ms Harris, who was also a mother at the centre, had a “brief chat” with Ms Mondon on the afternoon of 7 April 2014, in which she mentioned some of her own concerns about the applicant. Ms Mondon asked Ms Harris to put her concerns in writing, and I shall refer presently to what she wrote.
On the same day, the lead educator in the Toddler Room, Vikki Terry, was using the office at the centre for some planning work which she was undertaking. She was able to observe that Ms Mondon was (in Ms Terry’s words) “reading through some notes that [Ms Huynh] had given her”. Ms Terry understood that Ms Huynh had written something about “a casual staff member” who did not seem to be “working out so well”. Ms Mondon turned to Ms Terry and said, “Is that true about … this casual staff member? What’s your opinion?” Ms Terry’s response was, “Yes, that is true. That person isn’t … so great.” Ms Terry added, “[T]here is one other person that I think presents as more of a concern than this … person.” Asked by Ms Mondon what she meant, she then referred to the applicant. She gave Ms Mondon particulars of her concern, and I shall refer to them, in the written form which they ultimately took, presently.
Ms Mondon contacted the Fair Work Commission for advice as to her course of action in light of the complaints from Ms Huynh and Ms Parekh. An arrangement was made for an adviser from the Commission to visit the centre the following day. Ms Mondon also telephoned the State government department which had regulatory responsibility for the centre. There was some imprecision in Ms Mondon’s understanding of the name of this department, but nothing turns on that – I shall refer to it as “the department”. Ms Mondon’s evidence as to the advice which she received from the department was that they said to her, “Now that you have these complaints, it’s up to you, in your duty of care, to either place this woman with these children until you finish the investigation or stand this woman down.” A third alternative suggested, “to put someone in the room to spot this woman for the whole eight hours” was not, in the view of Ms Mondon, “a very good financial decision to make there, either.”
On the following day, 8 April 2014, the adviser from the Fair Work Commission visited the Centre, and spoke to Ms Mondon. He explained that the allegations against the applicant were serious ones, and that she should be suspended on full pay while the respondent conducted a full investigation.
Also on 8 April 2014, Ms Mondon contacted the Community Policing Squad, and informed them of the complaints made against the applicant. Nothing further needs to be said about this contact or its ramifications, if any. It is mentioned here purely for the sake of the narrative.
Following the advice which she had received from the Fair Work Commission and from the department, Ms Mondon resolved to conduct an investigation into the applicant’s conduct. Because both the President and the Vice-President of the committee were complainants, Ms Mondon suggested that the investigation should proceed under the direction of other members of the committee, and Dr Farrington and Ms Adderley came to be the ones who performed that role, although how this was done as a matter of formality is not clear – there was no resolution of the committee to that effect. Nothing turns on that, but it was Dr Farrington who took the step, on 8 April 2014, of informing the applicant by telephone that she was suspended on full pay on account of some complaints which had been received from parents, complaints which did not involve conduct of a “sexual nature”.
In that telephone conversation, Dr Farrington told the applicant that the respondent had received some serious allegations about her behaviour with some of the children at the Centre, and that they were going to have to suspend her on full pay while they investigated the allegations. She asked the applicant not to have any contact with the families or the Centre until they had contacted her. She said that they wanted to put together an investigation, and would have a meeting with her when that was complete. The applicant wanted to know the details of the allegations, but Dr Farrington said she would be informed of the allegations made against her at the foreshadowed meeting, and not during the phone conversation on that day. In the applicant’s evidence, it was said that Dr Farrington had described the conduct of which complaints had been received as “abuse of children”, but Dr Farrington emphatically denied that she used that expression, and I accept her denial.
Ms Harris forwarded her written statement of complaint on 8 April 2014. In that statement to Ms Mondon, Ms Harris said that she had observed, in the previous couple of months, the way that the applicant spoke to children in the Kinder Room. She said that the applicant yelled at quite a few children, mentioning three of them by name. She said that she had often heard the applicant “speak poorly” to her own (Harris’s) son. She referred to an occasion, on the previous Thursday, when she heard her son sobbing in the Kinder Room because, she understood, he and another child had got into trouble for something. She said that the applicant was doing nothing to comfort him or to try to calm him. She referred to things that she had heard, and gave some examples. If a child left the room in order to put something in his or her bag, the applicant would say “get back in the room” in a very commanding tone. Using the same tone, the applicant would say to a child, “get back on your bed, or lie down”. Ms Harris said that, most of the time, the applicant’s tone was “very commanding”, and sometimes she (Ms Harris) cringed when she heard it. She heard the applicant yell at children, and said that she did not use “a calm or nice tone with children, and basically bark[ed] at them”. She said there was “no please or thank you or praise”.
Continuing, Ms Harris referred to a situation, about a month previously, when two of the boys, one of whom was her son, spat at each other, according to what the applicant had told her (Harris) as she was picking her son up at the end of the day. From what Ms Harris understood speaking to another educator, her son was talking to another child “when a bit of spit came out while he was talking”. Ms Harris understood that it was not intentional, but the applicant described it to her as such. Ms Harris was “furious” that the applicant had accused her son of spitting, when “it wasn’t an intentional spit”.
Continuing, Ms Harris referred to a girl who was “a fussy eater and [who] prefers cheese and crackers”. Apparently, the girl’s mother was content for the girl to eat what she pleased. However, according to Ms Harris, the applicant required the girl to “try all the lunches”, the result of which was that the girl was scared of the applicant. When the girl got upset, the applicant’s usual comment was “oh here we go again”, following which the girl cried. Ms Harris said that she saw the applicant make the girl eat a spoonful of something, and that the girl was so upset “that she gagged and threw up” after which the applicant commanded that she go to the bathroom to wash her hands. Ms Harris said that the applicant went out of her way to inform her of things about the girl that were not nice, in the way of gloating. For example, the girl asked the applicant when she was going on a break, and the applicant relayed this to Ms Harris in a gloating way. Ms Harris had seen the applicant roll her eyes and say “here comes the waterworks” as this girl entered through the door.
In summary, Ms Harris said that she found the “manner and behaviour” of the applicant towards the children “extremely unacceptable”.
On 9 April 2014, Ms Terry forwarded her statement setting out the concerns which she had about the applicant to Ms Mondon. Ms Terry said that the Toddler Room (where she was the lead educator) and the Kinder Room shared a bathroom and an outdoor yard. This had provided many opportunities for her to witness the applicant’s interactions with the children. She said that the applicant spoke very derogatively about many of the children. For example, a child who did not separate easily was labelled a “sook”, and a child whose speech was not as advanced as that of others was labelled “dumb”, and a child requiring guidance was said to have “no idea”. Ms Terry said that, instead of being encouraging, warm and helpful, and smiling and playing with the children, the applicant would “snap at them, roll her eyes at them, yell at them”, and gave the general impression that she did not like some of the children.
Referring to some of the incidents that she clearly recalled, Ms Terry said that, while she was walking through the Kinder Room recently, one of the boys went out of his way to give her a “high-five”. This seems to have been something which he did with Ms Terry when he saw her. On this occasion, the applicant said to Ms Terry, “he’s turning into a smartarse, that one”. Ms Terry’s response was to say “Lyn, language” and the applicant replied, “What? He is!” On another occasion when Ms Terry was leaving the joint bathroom, a girl from the Kinder Room had just finished washing her hands, and was walking towards the paper towel dispenser to dry them. This was next to where Ms Terry was standing. The girl initiated a conversation with Ms Terry, at which point the applicant came in and snapped, “Come on … what are you doing?” The girl said that she was washing her hands, and the applicant said, “I know what you’re doing, you’re having a social chat, now get back in the room”. Last year, the applicant was telling Ms Terry about a Christmas craft activity with which she was helping a particular boy. She showed the boy the finished work of craft, and asked him to make one too. According to Ms Terry, the applicant seemed to take pleasure in telling her how the boy had “no idea”, and that he was “so dumb” as she rolled her eyes and shook her head. Ms Terry also recalled an occasion when the applicant entered the bathroom to see one of the boys on the toilet, and said rudely to him, “you’ve been there all day, hurry up!”, without, according to Ms Terry, “so much as checking if he needed help”.
Continuing, Ms Terry said that, when she was working with the applicant in the shared yard area, she felt that supervision of the children was compromised. The applicant was always seeking out co-workers for a talk, the topic of conversation always being negative or derogatory, and always about a child, a co-worker, a parent or something associated with the centre. According to Ms Terry, the applicant did not consider her “positioning in the yard to supervise the children” and walks to wherever another staff member was so she could talk to them. Ms Terry said that it was not unusual to walk into one of the other rooms and discover the applicant telling one of her stories, without regard for the child, staff member or parent about whom she was talking. She recently told Ms Terry about a situation which involved a co‑worker’s son, and Ms Terry later heard her telling the same version of events to another staff member. Ms Terry said that the applicant was never seeking advice or feedback about situations, but was merely gossiping, and deriving pleasure from it, with no regard for the people about whom she was talking.
The previous week, Ms Terry had finished work and was tidying up her storeroom, which sat between the Toddler Room and the Kinder Room, with doors into each room. Through the closed door into the Kinder Room, Ms Terry could clearly hear the applicant “snapping and yelling at the children as they finished off their afternoon tea”. Ms Terry said that the applicant intimidated the children and, as it appeared to her, the more that they feared her, the happier that she was. Ms Terry concluded her statement thus: “The way she speaks to the children is awful and I genuinely believe that Lyn is not suitable working in a role caring for children.”
Also at about this time, Ms Mondon spoke to one of the parents who said that she had walked into the Kinder Room and observed the applicant having words with a boy, and then forcibly “yank” him by the arm, making the boy look “very stunned”.
By letter to the committee dated 9 April 2014 (but seemingly delivered on 10 April), the applicant asserted a right to know the accusations that had been levelled against her. She sought a written response, in which the allegations were set out in detail, within 24 hours. On 10 April 2014, Dr Farrington replied in a letter which stated that the allegations made against the applicant were being investigated, and that, if any of them needed to be addressed by the applicant, she would have an opportunity to do so at the meeting which she had earlier foreshadowed.
On 11 April 2014, Dr Farrington wrote again to the applicant, fixing 3:00 pm on 15 April 2014 as the time for the meeting at which she would be informed of the allegations against her. In that letter, Dr Farrington said:
The allegations that have been levelled against you will be read out to you at the meeting and you will be informed fully of their content.
We wish to reiterate that at this stage Skye Children’s Cooperative Management Committee have not drawn any conclusions or made any decisions, and will not do so until we hear your response and deliberate and consult on the day of the meeting.
There will be two delegated Committee Members present and also our new Centre Leader who will take the minutes of the meeting.
In an email of 11 April 2014 to Dr Farrington, the applicant again asked to be given all the information that was to be used against her “so that [she could] have a thorough knowledgeable right of reply”. That request was refused. By email sent on the afternoon of 14 April 2014, Dr Farrington said that the respondent’s legal advisers had “explicitly stated that we are to verbally detail the complaints to you during the meeting tomorrow and not beforehand”.
On the morning of 15 April 2014, Dr Farrington attended at the centre. Ms Mondon and she read, and considered, the documented complaints against the applicant to which I have referred above. They then prepared a one-page summary, in point form, of the more substantial matters which had been raised in the complaints. This was printed, after which Dr Farrington added two additional points in manuscript. This was intended as a kind of running sheet to guide the committee’s representatives in their discussions at the forthcoming meeting with the applicant. In the half hour or so before the meeting started, Dr Farrington and Ms Mondon showed the running sheet to Ms Adderley, and they went through the items on it.
The meeting commenced at about 3:00 pm on 15 April 2014. It was held at a nearby netball stadium, where Dr Farrington had booked a room. The applicant was accompanied by Greg Hall from the union, as her “support person”. He was instructed by the respondent’s representatives that he was not to speak during the course of the meeting (which – although it was not made entirely clear – I take it that he understood that he was not to act, in effect, as the applicant’s advocate, since the evidence was that he did speak occasionally, on matters of clarification and the like). Present on behalf of the respondent were Dr Farrington, Ms Adderley and Ms Mondon.
By reference to the running sheet, Dr Farrington commenced by introducing herself, Ms Adderley and Ms Mondon to the applicant and Mr Hall (it being remembered here that the applicant had not previously met Ms Mondon). Dr Farrington then told the applicant that legislation stated that, whenever a service received a complaint of the nature that the respondent had, it was required to notify the department within 24 hours, and the department would ask the service to contact the police as well. The respondent was following its obligations under “Children’s services regulations”, and had not drawn any conclusions. Dr Farrington then summarised the complaints that the respondent had received in relation to the applicant.
She referred to Ms Huynh’s indication that her daughter told her that the applicant smacked two named children on the bum. She referred to Ms Parekh’s indication that her daughter told her that the applicant whacked four named children on the bottom and on the back if they did not go to sleep or eat their lunch. She said that Ms Harris had “on many occasions” heard the applicant yelling and screaming at the children, such comments as “get back on that bed” and “get back in the room”; that Ms Harris had witnessed the applicant “on more than one occasion” force-feeding a named girl “until she vomited the food up and then gloated about the child crying and putting it on”; and that Ms Harris had heard the applicant “constantly” yelling at a named boy and girl, particularly the boy. She said that Ms Terry had witnessed the applicant “on many occasions” speaking negatively about the children; that Ms Terry had witnessed the applicant asking a particular girl what she was doing in the bathroom and, on being told by the girl that she was washing her hands, saying to her in an “adamant tone”, “No you’re not, you are having a social chat, so get back into the room now”; that Ms Terry had witnessed the applicant calling the children dumb and rolling her eyes and laughing at the projects they had completed in craft; that Ms Terry had witnessed the applicant telling a boy who was in the bathroom to “hurry up” without checking whether he needed help; that Ms Terry had witnessed the applicant “numerous times” calling the children dumb and “sooks” in many situations; and that Ms Terry had heard the applicant “on many occasions” yelling and snapping at the children at snack times. She said that the mother of one of the children in the Kinder Room had heard the applicant yelling at a particular boy, and saw her “yank and pull him across by his arm”, with the boy looking “stunned and scared”; that the applicant noticed the mother observing this, and “did not seem to even care” that it had been observed; and that the daughter of this mother had come home saying such things as “you are a piece of crap”. She said that the applicant had made a comment about a particular boy that he was “turning into a smartarse that one”.
While Dr Farrington was putting these matters to the applicant, Ms Adderley was taking notes. She noted that the applicant and Mr Hall were also taking notes. As the allegations were put to her, the applicant (according to Ms Adderley) “looked shocked”. At some of the allegations, the applicant “scoffed and laughed out loud”.
That having been done, at a time which Ms Adderley recorded as about 3:11 pm, Dr Farrington, Ms Adderley and Ms Mondon informed the applicant that they would give her the opportunity to discuss the allegations with Mr Hall and that they would, for that purpose, withdraw from the room. That occurred.
About five minutes later, Mr Hall invited Dr Farrington, Ms Adderley and Ms Mondon to return to the room, to hear the applicant’s response to the allegations. Ms Adderley took notes of this part of the meeting. It was not put to Ms Adderley that her notes were inaccurate or incomplete, and no submission to that effect was made on behalf of the applicant. Mr Hall was not called.
At the outset, the applicant denied ever hitting a child. She admitted to patting them on the bottom when encouraging them to go to sleep. As to one of the children alleged to have been smacked on the bum, the applicant said that his mother had asked her to be firm with him. She said that this boy loved her, and asked rhetorically, “why would he come to me if I hit him?” At this point Dr Farrington made the comment that this response by the applicant involved a level of “child psychology” that those present were not able to discuss. As to the other named child involved in the bum-smacking allegation, Ms Adderley’s notes refer to a different (but phonetically similar) name, with a query, which may have meant either that the applicant did not understand the identity of this child when the allegation was originally put to her or that Ms Adderley did not pick up the name when used by the applicant in her response. However that may be, the response was that she, the applicant, did not work on the days that this child attended the centre.
According to Dr Farrington’s recollection, it was at this stage of the meeting that the applicant, or Mr Hall, made a request for the allegations to be re-stated one at a time, so that the applicant might be able to deal with them seriatim. That was done, and what follows below is, unless otherwise stated, based upon Ms Adderley’s notes in relation to each of the allegations as they were dealt with.
As to the allegation that the applicant had force-fed a girl, she responded that she must feed this girl because she would not feed herself. She said that what she was doing was supported by the girl’s parents. She admitted to “pushing” the girl to have at least two spoonfuls before deciding that she did not want to eat what had been provided, and was then given cheese and biscuits (apparently the girl’s preferred diet).
The applicant denied yelling at the children, but admitted raising her voice.
With respect to the allegations that derived from Ms Terry’s statement, the applicant agreed that she had often told the children that the toilet was not a room “to have a party in”, and that she had often told the boys to get out of the room if they were not using the toilet. She admitted to telling a boy to “hurry up” and to “get off the toilet”. She said that this boy had been on the toilet when she took her tea break, and was still there on her return. In this respect she admitted that she had not done a formal handover when she left the room. She also admitted that, on another occasion, the boy had been on the toilet for over an hour.
The applicant admitted to calling a child “sooky” if they cried when they fell over. According to Ms Adderley’s notes, the applicant “then corrected herself, as if shocked at how that may have sounded”.
Having clarified that a “snack time” was morning or afternoon tea, the applicant denied yelling at the children to make them eat their food at such times, but said that she rushed children “to eat and then move along”, as there were 22 children in the room, but only six could eat at a time. Here Mr Hall asked for the dates and times of these incidents, but the representatives of the respondent were unable to provide them.
According to Ms Adderley’s notes, the applicant “categorically denied” the allegation that she had yanked and pulled a boy by his arm. According to Dr Farrington’s recollection, when this allegation was put to the applicant, she asked who the boy concerned was. The boy was identified by his first name, and the applicant asked which of the boys with that first name it was. The boy was then identified also by his surname, and the applicant said, “I wouldn’t have done that to him”. According to Ms Adderley’s notes, the applicant emphasised this at least three times, at which point Ms Adderley enquired whether this implied that she might do it to another child, and the applicant denied ever doing it to any child.
According to Ms Adderley’s notes, Dr Farrington then “summarised all the allegations”, and the applicant denied them all, save that she admitted to telling the boy to hurry when he was on the toilet. The applicant mentioned that other staff also raised their voices, to which Ms Adderley said that the committee would welcome feedback regarding any staff members, but that the meeting that day was about the applicant.
At about 3.40 pm, the representatives of the respondent then invited the applicant and Mr Hall to leave the room, so that consideration might be given to the responses which the applicant had provided. After they had left, Dr Farrington and Ms Adderley discussed those responses, and decided that they had no alternative but to terminate the applicant’s employment. Ms Condon was present during these discussions, but took no part in the decision‑making process. She denied that she was a decision maker, to any extent, in this process, and that denial was accepted by counsel for the applicant.
In chief, Ms Adderley and Dr Farrington explained their reasons for having reached their decision to dismiss the applicant from her employment. Ms Adderley said that –
… due to the serious nature of the allegations, the fact that there were a number of allegations from different parties at different times, that we had lost confidence in her ability to care for the children at [the centre] and we couldn’t, in good conscience, put her back in the room to care for the children.
Dr Farrington said:
Amanda and I mainly discussed about how we felt that the investigation had really – it had uncovered a fairly large spectrum of bad behaviour that – from – lots of different people had witnessed. So we had children complaining to parents. We had parents witnessing things directly. And we had staff members also hearing things as well as seeing things that weren’t appropriate. And I suppose on a personal note for me, I had started the investigation with that end point where the children had claimed that they had seen her smacking other children, but then at the end of the investigation we kind of had this continuum of behaviour that we felt was really unacceptable, and I suppose from that and her responses, because she had categorically denied the majority of them, and she hadn’t provided any – there wasn’t any dialogue into how people may have perceived this was the case, but it was actually from her perspective it was different. It was just categorically denying it, and saying that she wouldn’t have done that. … I suppose Amanda and I both felt at the end of our discussion that we had really lost confidence in her as a carer at the centre, and that – especially she hadn’t given us any further detail or anything else to work with, and we really – with these serious allegations, that we were left with no option but to terminate her employment.
These explanations had a strong ring of credibility about them, both in their content and in the manner of their delivery in the witness box. They were not undermined in cross-examination. I accept them as truthful.
At about 3:55 pm, the applicant and Mr Hall were invited to return to the room, whereupon the applicant was informed that her employment was terminated on account of misconduct. That termination was confirmed in writing the following day.
The applicant’s dismissal was adverse action within the meaning of item 1(a) in the table in s 342(1) of the FW Act. She alleges that it was unlawful under certain provisions of Pt 3-1 of that Act. The provisions of which she relies are:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; …
….
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
341 Meaning of workplace right
…
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
….
346 Protection
A person must not take adverse action against another person because the other person:
(a)is or is not, or was or was not, an officer or member of an industrial association; or
(b)engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); ….
The applicant relies also on ss 360 and 361 of the FW Act.
The applicant’s case is that her employment was terminated for the reason, or for reasons which included the reason, that –
·she was a member of the union (s 346(a));
·she contacted the union by telephone to arrange for the meeting with Mr O’Brien (ss 340(1)(a)(ii) and 341(1)(c)(ii));
·she attended that meeting in company with other employees (ss 340(1)(a)(ii) and 341(1)(c)(ii)); and
·the union exercised its right of entry on her behalf on 17 March 2014 (ss 340(2) and 341(1)(a)).
The respondent did not contest the existence, or the statutory characterisation, of the underlying factual circumstances upon which the applicant relied. That is to say, it was accepted that the applicant was a member of the union, that she had contacted the union, that she had attended the union meeting and that the union had exercised its right of entry on her behalf; and it was also accepted that those circumstances were properly characterised under the various provisions of the FW Act to which I have referred in the previous paragraph. The respondent’s defence relied wholly upon its ability to discharge the onus, arising under s 361 of the FW Act, of proving that these circumstances were not, and that none of them was, the reasons, a reason, or included amongst the reasons, for which the applicant was dismissed.
In that department of the case, the inquiry relates to the actual reasons of the person or persons who took the decision to dismiss the applicant: Bendigo Regional Institute of TAFE v Barclay (2012) 248 CLR 500, 516 [42], 546 [146]. Thus the first matter to be determined is who was the person, or persons, who made the decision to terminate the applicant’s employment. It is the respondent’s case that Dr Farrington and Ms Adderley, and no-one else, made that decision. Once Ms Mondon is removed from the picture – as uncontroversially she must be – all the ostensible indications support the respondent’s case in this regard. At least so far as appears on the primary evidence, the decision had not been made before the commencement of the meeting between Dr Farrington, Ms Adderley and the applicant on 15 April 2014, and it was made in the period of 15 minutes or thereabouts leading to 3:55 pm while the applicant and Mr Hall were out of the room. During that period there was no suggestion that Dr Farrington or Ms Adderley contacted anyone else, or that anyone else made any kind of intervention into, or contribution to, their deliberations.
In the submission made on behalf of the applicant, it was contended that a decision had been made, or at least a view had been reached, at the meeting of the committee on 19 March 2014 that the applicant should be terminated from her employment. The driving force behind this decision or view, in effect, was Ms Huynh. It was submitted that it was she who had effectively decided to dismiss the applicant, and that Dr Farrington and Ms Adderley were doing her bidding when they acted in accordance with her decision on 15 April 2014. It was said that Ms Huynh had been upset at the exercise by the union of its right of entry on 17 March 2014, and had made it her business to find out who was behind the union’s involvement in the affairs of the centre.
Under cross-examination, Ms Adderley denied that it had been determined on 19 March 2014 that the committee would “get rid of” the applicant. Dr Farrington denied that she had been instructed by Ms Huynh to use the meeting with the applicant on 15 April 2014 as a means of terminating the applicant’s employment. She said that she did not have any communication with anybody on the committee, other than Ms Adderley, about the matters that were to be put to the applicant on 15 April 2014. She denied that there was any “predetermined outcome” (counsel for the applicant’s words) as to what was going to happen to the applicant. Of the other witnesses who were members of the committee, neither Ms Huynh nor Ms Parekh was asked whether the decision to dismiss the applicant was made at the committee meeting.
It seems that there were minutes of the committee meeting held on 19 March 2013, but they were not placed into evidence. Counsel for the applicant made a submission – consistently with a like submission in respect of emails passing between senior members of the committee and members of the respondent’s staff in March 2013 – that the court should infer that nothing in the minutes would have provided any assistance to the respondent’s case and, therefore, should infer that the committee did indeed resolve to arrange for the applicant’s employment to be terminated, in doing so they followed the lead of Ms Huynh who wanted the applicant dismissed because of her membership of, and activities in, the union. Counsel submitted that Jones v Dunkel (1959) 101 CLR 298 established the principle by which the court should be guided in this area. That disingenuous submission should be rejected. The events in which the applicant herself participated, and of which she knew, would provide no sustenance for an inference that her dismissal had been pre-determined at the committee meeting on 19 March 2014. In her pleading, no such pre-determination was alleged. At a directions hearing before Bromberg J on 26 August 2014, the applicant did not seek discovery. Notwithstanding that witness statements had been exchanged, and, therefore, that the applicant knew in advance broadly what Dr Farrington, Ms Adderley and Ms Huynh would say, counsel for the applicant did not open her client’s case on the basis that such a pre-determined outcome would be alleged. In these circumstances, the respondent was not on notice that the minutes of the committee meeting on 19 March 2014 might be required to resist an important part of the applicant’s inferential case. The respondent did not, of course, need the minutes for its own case: that was sufficiently established by the oral evidence to which I have referred.
The present case does not, moreover, involve a Jones v Dunkel situation at all. Where an inference is fairly open on the evidence, and where a party, having it within his or her capacity to call evidence, known to exist, to rebut the inference, that party will not be heard to contend that the inference should not be drawn. But that is not the present case. There is no evidence from which an inference that it was resolved to arrange for the applicant’s employment to be terminated at the committee meeting on 19 March 2014 could be drawn. Indeed, the only witnesses who were present at that meeting emphatically denied any such suggestion.
I find that the decision to dismiss the applicant from her employment was made by Dr Farrington and Ms Adderley on 15 April 2014. No other person participated in that decision. It was not made on any previous occasion.
That brings me to the reasons of Dr Farrington and Ms Adderley for their decision to dismiss the applicant. Ms Adderley was on the staff of one of the major banks. In 2008, she joined the union which was appropriate to her employment. At the time of giving evidence, she remained a member of a union. She said that she was “generally supportive” of unions. It was not until the commencement of this proceeding that she learnt that someone in the employ of the respondent had contacted the union, or that the applicant and others had met with a union representative. She was, however, aware (from an email sent to members of the committee by Ms Huynh) that the union had notified the respondent that it would be exercising its right of entry in relation to the centre. She did not, however, know who had organised for that to happen.
Dr Farrington was a research academic at Monash University. She was, and had since 2011 been, a member of the relevant union. She first joined a union when working as a casual junior shop assistant at the age of 15. She believed that unions performed a useful function for employees. Her union had been helpful to her. She believed that it was useful for employees of the respondent to be represented by a union in the context of the setting of award wages and enterprise bargaining. When told that a union representative was coming to meet with the staff at the centre, Dr Farrington offered to speak to him about any issues that he, or the staff, wanted to raise with the committee, but she did not hear anything from him about that so she assumed that everything was “fine”. At the committee meeting on 19 March 2014, the fact that some of the employees had joined the union was mentioned, but the applicant was not identified in this respect. Dr Farrington did not recall any mention of the earlier meeting with Mr O’Brien.
I have accepted the explanations given by Dr Farrington and Ms Adderley for why the applicant was dismissed: see para 50 above. That leaves the possibility, of course, that their reasons were multiple ones, and that one or more of them was a reason proscribed by the FW Act. But they denied that the reasons alleged by the applicant, or any of them, played any part in their decision to dismiss. Those denials were not formulaic: they conspicuously reflected the dynamics of the case. There were very clear reasons why the applicant was dismissed. The proposition that she was dismissed for any of the reasons alleged by the applicant had, by contrast, neither an obvious nor a realistic grounding in the relationship between the applicant and the respondent.
The only circumstance that might provide sustenance to an inference that the applicant’s involvement with the union played a part in the respondent’s reasons for her dismissal was the recent meeting with Mr O’Brien from the union, the applicant’s having become a member of the union, and Mr O’Brien’s interviews with staff at the centre pursuant to his right of entry. There was a contemporaneity of these events with the applicant’s dismissal that might, absent other circumstances that explained the timing of that dismissal, give cause for suspicion that the two events might be connected. But there were other such circumstances. There were serious complaints against the applicant, the timing of which had the benign explanation that it was necessary to have a Centre Leader in place for the purpose of discharging the respondent’s obligations as employer in a professional way. Further, I would find that Dr Farrington and Ms Adderley were utterly unconcerned about the union’s involvement amongst the staff at the centre. Both were both accustomed to, and relaxed about, white collar and professional staff being industrially organised. Finally, should it matter (and, in the light of the other findings which I have made, I do not think it does), I also note that, at the time when they decided to dismiss the applicant from her employment, they were not aware that she (the applicant) had been instrumental in setting up the meeting with Mr O’Brien (although, at the meeting on 15 April 2014, they assumed that the applicant was a member of the union, because of the presence of Mr Hall).
I accept the denials of Dr Farrington and Ms Adderley that they dismissed the applicant for any one or more of the reasons alleged by her in her application in this proceeding. I accept that each of them took their responsibility to consider the applicant’s responses to the allegations that had been made against her very seriously, and approached the task with great care, and focussing only upon the matters alleged. Their evidence, both in its content and in the manner of its giving, was very credible.
I find that the circumstances alleged by the applicant, listed in para 53 above, were not, and that none of them was, a reason for the termination of her employment on 15 April 2014.
For the above reasons, the Application will be dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 27 January 2015
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