Kristina Nicolaou v Minifie Park Early Childhood Centre

[2016] FWC 1228

[2016] FWC 1228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristina Nicolaou
v
Minifie Park Early Childhood Centre
(U2015/10064)

COMMISSIONER WILSON MELBOURNE, 2 MARCH 2016

Application for relief from unfair dismissal.

[1] This matter surrounds events at the Minifie Park Early Childhood Centre (Minifie Park ECC) on 3 July 2015, after which Kristina Nicolaou, a lead educator, was dismissed on 31 July 2015.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Ms Nicolaou’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time she was dismissed she was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] For the reasons set out below, I find that Ms Nicolaou was not unfairly dismissed.

BACKGROUND

[4] The material which is before the Commission so far as the Applicant is concerned, consists of the F2 - Unfair Dismissal Application, a witness statement of Ms Kristina Nicolaou and an outline of submissions 1 filed by her representative.

[5] On behalf of the Respondent, the material which is before the Commission comprises the Form F3 - Employer Response, five witness statements, the respondents outline of submissions filed by their representative and a number of documents provided to the Commission under Notices to Produce issued 9 November and 16 November 2015.

[6] Prior to the termination of her employment from Minifie Park ECC, located in Balwyn, in suburban Melbourne, Kristina Nicolaou was employed as a lead educator, responsible for the preschool room. She had been employed by the centre since April 2014 and was assigned to the preschool room.

[7] Children in the preschool room are routinely provided with food, prepared by the Centre, including snacks. During the afternoon on Friday, 3 July 2015, Ms Nicolaou collected an afternoon tea tray for the children for whom she was responsible from the Centre’s kitchen and took it back to the preschool room. Afternoon tea on that day was a jam drop, described as a “doughy biscuit with a large dollop of jam in the middle”. 2

[8] Unfortunately the biscuit was not suitable for one of the children who had an egg allergy. The child is a boy, who was aged 4 years old at the time. 3 Material associated with the boy’s “Action Plan for Anaphylaxis” indicates that in addition to being allergic to egg, he is allergic to peanuts and tree-nuts, and that several medications are indicated for responses to allergic incidents, including Zyrtec and an Epipen.4

[9] When she was interviewed about the incident, Ms Nicolaou reported that the child’s mother had informed her at the morning drop-off that her son was suffering from asthma and may require additional Ventolin throughout the day. 5

[10] The Centre’s investigation report records the following matters about the events on 3 July 2015;

• The jam drop biscuit contained egg and the child ate a small portion of the biscuit, after which he developed symptoms of an allergic response, initially coughing, which Ms Nicolaou and another of the staff in the pre-school room, Rachele Sulzberger, took to be asthma. Ms Sulzberger watched the child and noticed that at the time other children went outside to play, the child chose to sit by himself. She reported to Ms Davies in the course of the investigation into these matters as thinking that was unusual.



• The child’s mother was on her way to collect her child, however before doing so he vomited. He was taken to another area and observed. Another staff member asked if he might have had “an allergic reaction to the afternoon tea, for she knew there was egg in the biscuits”. The investigation report reports Ms Sulzberger as noting to the staff member that the child had not eaten the biscuits for afternoon tea.



• When the child’s mother arrived, she was informed about the situation in more detail. She said she would take her child for medical assistance. As she put him in her car, the child vomited again. When the mother queried whether her child may have been exposed to egg, Ms Nicolaou replied the biscuits may have contained egg but that the child would have had only a “slither”. The mother reportedly had replied that that is all that it would take to cause an anaphylactic reaction.



• Ms Sulzberger sent Ms Nicolaou out to the car park with the child’s emergency medical bag and the mother endeavoured to administer antihistamine to her child, however found the bag lacked a syringe for that purpose. Rachele went inside to find one, however while doing so the mother found an alternative and administered the antihistamine. 6



• The mother attended a doctor that afternoon.



• After the child and his mother had departed the Centre, Lauren Liistro, working at the centre in an administration and bookkeeping role, asked the temporary chef whether there had been egg in the afternoon tea, with it being confirmed that there was. 7



• Ms Stone asked Ms Nicolaou if the child had eaten any of the biscuits for afternoon tea and Ms Nicolaou replied that she was not sure. 8



• Ms Liistro later left a voicemail for the child’s mother saying that there had been egg in the afternoon tea and that her child had consumed some of it.



• Rachel Davies, the Centre’s Director, was on annual leave on 3 July 2015, however she was contacted by Ms Liistro and informed her about the situation, after Ms Stone expressed the view that Ms Davies should be contacted and told what had happened. After being informed of the situation, Ms Davies directed that an illness report be completed, as well as other steps relating to the documentation of the circumstance. Ms Nicolaou wrote her report separately to Ms Sulzberger. Ms Liistro also contacted the Chair of the Centre Committee, Michael Cockburn, and let him know of the events.



• A “serious notification” report was prepared and submitted to the Victorian Department of Education and Training.

[11] After the day of the incident itself, Minifie Park ECC’s management and Committee returned to what had happened and why. Its investigation of the matter consisted of several steps of ascertaining what had occurred and whether there were any failings on the part of a staff member. Since 3 July 2015, being the date of the incident, was a Friday, and Ms Davies was on annual leave, the Centre’s investigation of the matters did not commence until Monday, 6 July 2015. 9

[12] The steps taken by Minifie Park ECC to investigate what had happened included Ms Davies meeting with Ms Nicolaou on 6 July 2015 to discuss with her what had taken place and Ms Davies seeking advice from the Early Learning Association Australia. In addition, between 6 July and 9 July 2015, Ms Davies met with the child’s mother and with six other staff members. Ms Davies then prepared an investigation report for the Minifie Park ECC’s Committee and forwarded it to Mr Cockburn on 10 July 2015. 10

[13] The investigation report made several findings adverse to Ms Nicolaou. As a result, Mr Cockburn and Ms Davies met with Ms Nicolaou on 13 July 2015 in order to discuss those matters. In the meeting on 13 July, the allegations made in the investigation report about Ms Nicolaou were detailed to her and she was asked for a response. Five findings within the investigation report are relevant to Ms Nicolaou and were the basis of the matters put to her in the meeting, with the relevant findings being as follows;

“ Kristina exposed [the child] to an allergen, resulting in an anaphylactic reaction,

• Kristina failed to maintain the emergency medical bag with required equipment that would enable effective first aid in an emergency situation,



• Kristina and Rachele failed to identify anaphylactic symptoms and provide adequate first aid.



• Kristina failed to report the serious incident and other events leading to the event to her immediate manager.



• Kristina provided misleading and inconsistent details about the serious incident to a number of people, including her Area Manager, the person in charge on the day, the parent, and the Nominated Supervisor.” 11

[14] Ms Nicolaou was given an opportunity to respond to these findings, which she did, on 17 July 2015. 12

[15] Following receipt of Ms Nicolaou’s response a meeting of Ms Davies, the Centre’s Director, and the Minifie Park ECC Committee was convened on 20 July 2015 13, in order to resolve what should be done. After a discussion of the situation and whether such findings as the Centre relied upon about Ms Nicolaou’s conduct warranted either termination of employment or demotion, the Committee did not reach a concluded view.14

[16] Ms Davies and Mr Cockburn agreed to discuss the matter again on the following day, which was done. After that discussion, Mr Cockburn relayed to Ms Davies his decision that the question of the nature of disciplinary action against Ms Nicolaou should be decided by the Committee. 15

[17] Such later discussion between members of the Committee resolved to dismiss Ms Nicolaou, with that decision relayed in a meeting with Ms Nicolaou and her union on 30 July 2015. Ms Davies and Mr Cockburn attended on behalf of the Minifie Park ECC, and in the meeting Ms Nicolaou was informed by Mr Cockburn that the Committee had decided to dismiss her “because of what had occurred on 3 July 2015 and the inconsistent information she had provided in the wake of that incident”. 16

[18] The letter of termination provided to Ms Nicolaou advised she would be paid two weeks in lieu of notice of termination. Ms Nicolaou’s employment then finished on 31 July 2015.

LEGISLATION

[19] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows;

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[20] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account each of the elements of s.387.

[21] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 17 This involves the Commission assessing for itself whether or not the alleged misconduct occurred, and not whether the employer was entitled to form that view.18 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.19 The Commission will also take into account the need for honesty on the part of the applicant during the course of an investigation.20

[22] I now consider in turn each of the elements of s.387.

(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)

[23] The evidence about the occurrences of 3 July 2015 indicates there had been a sharp deterioration in the child’s condition over a short period of time. In addition to the matters noted in the investigation report and referred to above, I note that it identifies the following, which I consider to be relevant to the question of whether Minifie Park ECC had a valid reason for Ms Nicolaou’s dismissal;

• First the child sat outside on a couch when the other children played, which was noticed by Ms Sulzberger as unusual behaviour. She is reported as having told the investigation that she thought he was withdrawn, perhaps being a feature of shyness.



• The child then vomited and was taken to the office, where he was observed, either laying on the floor, 21 or on a couch appearing pale.22 After a second vomit there was speculation the child may be anaphylactic and a suggestion was made that Rachele should be separated from Ms Nicolaou to obtain a statement as to what had happened.23



• The child’s mother arrived and after seeing he was pale and lethargic she was told several things including that her child “had low oxygen levels and that he may need a nebulizer”. 24 She promptly decided to seek medical attention.



• After vomiting another time, the mother is reported to have suspected an anaphylactic reaction. 25 She called for her son’s emergency bag and when it arrived, found it was inadequately resourced, with the investigation report graphically recording a very serious situation;

“When [the mother] opened [the child’s] emergency action bag to administer antihistamine, she discovered there was no syringe to measure the dosage. She called out again to Rachele in the yard and stated that there was no syringe. Rachele ran inside the Preschool bathroom to find a syringe. She met Amy and asked her if she knew where one was. Amy asked why. Rachele stated that [the child] was having an allergic reaction and that he needed a dose of antihistamine. She asked Amy if she thought there was egg in the biscuits at afternoon tea. Amy said she wasn’t sure, but thought there probably would be. She directed Rachele to the kitchen where she could find a syringe. Rachele ran up the stairs and asked Lauren, who was now in the office, if she knew where a syringe was. Lauren took a syringe out of the cupboard and gave it to Rachele. Rachele asked Lauren to call Kerrie to find out if there was egg in the biscuits. Rachele took the syringe out into the carpark, however by this time [the mother] had found an alternative and had administered the antihistamine.

Vicki was in the carpark at this time helping to clean [the child] and his car seat from the second episode of vomiting. [The mother] told [her child] he would need to go to the doctor as he was having an allergic reaction. Vicki offered to attend with her to help. [The mother] declined but asked if Vicki could find out for certain if there was egg in the biscuits. [The mother] left to take [her child] to the doctor. The staff returned to the service.” 26

[24] This chronology graphically indicates the swift emergence of a serious event. While it is fortunate it ended without lasting health effects by the time the mother left the Centre, all concerned would likely have realised there had been a serious systems failure which had seriously endangered a child.

[25] By the time the child and his mother left, there was little doubt that the boy had suffered a serious allergic reaction, and likely because somehow an anaphylactic allergen had been served to the child. There had been a failure on the part of staff to recognise the symptoms for what they were. The emergency medical bag was incomplete and potentially dangerously so.

[26] The combination of those three factors reasonably required the Respondent to investigate what had gone wrong within its systems. In the context of Minifie Park ECC’s service to the community it had an obligation to consider what failings there were and what corrective or disciplinary actions should be taken as a consequence.

Responsibility for service of an allergen

[27] Criticism of Ms Nicolaou in respect of the first proposition – that food containing an allergen had been served to a child when it should not have been – depends firstly on the extent of the knowledge both of Minifie Park ECC and Ms Nicolaou about the child’s allergic state. Such knowledge is established in the evidence. It also depends on Ms Nicolaou having an obligation to check on the status of the afternoon snack and its safety for the children in her care when she collected it from the kitchen, but failing to do so. The proposition also reasonably depends on a third element, namely that the Minifie Park ECC’s standard processes regarding service of food containing allergens were otherwise followed on the day.

[28] While it is the case of Ms Nicolaou that she did not check on the status of the afternoon snack when she collected it, in her defence, she argues that she was not informed about the potential for allergens in the food that she collected from the kitchen;

“9. If a tray comes out with one plate of food it is assumed that all children in that room can eat the food on that plate.

10. If a special meal is to be made up for a child with a known allergy then the tray will consist of extra plates of food which are named for individual children.

11. It is then the responsibility of the chef to ensure the right food goes to the right room and children.

12. On 3 July 2015 the tray prepared for the pre-school room came out with only one plate of food on it indicating that it was safe for all children to partake in.” 27

[29] It is further noted that the chef working that day was a temporary chef. 28

[30] Because of this, while I consider that Ms Nicolaou both had knowledge of the child’s allergic status and did not check the status of the food when she collected it, preferring to infer that just because there is one plate of food, it was safe for all children, 29 the Centre’s processes potentially allowed that situation. Ms Nicolaou assumed the food was safe for the children in her care, and she was told nothing to the contrary. A potentially dangerous situation appears to have risen because of the combination of the chef overlooking the allergic status of particular food and a child’s particular needs, as well as Ms Nicolaou appearing to not have followed standard practice and questioned the suitability of the food.

[31] In the circumstances of this matter, which likely includes either failings of other staff, or gaps in the Centre’s systems generally, I consider that while Ms Nicolaou could reasonably be called to account for her failure to follow procedure and check the status of the snack when she collected it, that accountability is reasonably shared with others.

Failure to recognise the child’s symptoms

[32] While the contention that Ms Nicolaou failed to recognise the child’s symptoms is also factually allowed on the evidence, there are several distinct stages of the incident, and it could be that Ms Nicolaou’s responsibility varies through those stages.

[33] The first stage includes the time between collecting the food and allowing the child to eat some of it, during which time Ms Nicolaou had “no comprehension at the time that there was egg in the biscuit”. 30 That was followed by the first symptoms, in which the child initially withdrew, after which he was taken to the office. During that stage the investigation report concludes Ms Sulzberger and Ms Nicolaou thought the child had asthma.31 There was no understanding or suspicion on the part of either at that time that the child had been exposed to an allergen. Ms Nicolaou reported to Ms Davies during the investigation that she had been told by the child’s mother that morning that he was suffering from asthma and may require additional Ventolin during the day.32

[34] That early stage was followed, quickly it seems, by another in which an allergic reaction was first mooted, about which the Minifie Park ECC investigation report records the following;

“At some stage, as [the child] was lying on the office floor, Steph walked past the office and asked Rachele [Sulzberger] if she needed some help. Rachele said “No, he’s fine”. Steph replied that she was relieved, as her first thought was that [the child] had had an allergic reaction to the afternoon tea, for she knew there was egg in the biscuits. The Nursery, Toddler and Prekinder rooms all had children attending on that day who suffered from egg allergies/intolerances. The Lead Educators in these rooms had chosen to provide these children with an alternative afternoon tea as they suspected that the biscuits contained egg. Rachele noted to Steph that [the child] had not eaten the biscuits for afternoon tea.”

[35] I understand “Steph” to be Steph Bradbury, an educator who worked in an adjacent room to Ms Sulzberger and Ms Nicolaou. Ms Bradbury did not give evidence in these proceedings.

[36] This passage raises two further issues relevant to the missed identification of symptoms; namely that another staff member immediately connected the symptoms with her suspicion of food allergens, and that Ms Sulzberger appears to have been acting on the assumption that the child had not eaten any of it.

[37] As well as these two issues, it also raises the question of whether Ms Nicolaou should reasonably have questioned the content of the food, when others plainly did so. It also raises the question of whether the chef had actually or sufficiently followed standard procedure to identify allergens and prepare separate food for allergic children.

[38] A third stage involves the period in which the child was handed over to his mother, and in which she sought his emergency bag for the administration of antihistamine, because she suspected an anaphylactic reaction, and said she would take her child to a doctor.

[39] Ms Nicolaou’s responses to Minifie Park ECC’s questioning about whether the child had eaten any of the biscuit were, at best, uncertain on the matter. After being served a jam drop, the child “looked at it like he didn’t want it” and “either took the smallest bit ever or just put it to his lips”. 33 In her response to the Centre’s investigation report, Ms Nicolaou continued to dispute there had been meaningful consumption of the biscuit;

“ I didn’t say to Nikki that he had a slither, I said that he may have had a tiny bite if even that much, Nikki responded well that little bit is enough to do it to him, his anaphylactic.

• I did say in my report that I served [the child] the biscuit but missed the part where he said he didn’t like it and I simply said, “you haven’t even tried it.”

[40] Reasonably viewed, these responses are intended to create the impression that there either was no consumption of the biscuit by the child, or if there was, it was such a small piece that it could not possibly have been dangerous to him.

[41] Ms Nicolaou provided conflicting evidence in cross examination about whether the child had eaten any of the biscuit. Initially she was unsure, and continued to appear to be reluctant to accept that he had eaten any of it;

“You gave him a pear, did you?---Correct.

Did you also say to Ms Stone that you weren’t sure whether Oscar had eaten any of the afternoon tea?---Incorrect. I said that he had had a small bite, which would be inconsistent to her comment about me mentioning to the mother that he had a crumb.

No, that was earlier. I’m talking about the time when - so that was when the mother was there, now I am talking about the time approximately when this statement was given by your to Ms Stone. So what Ms Stone says is that you said to her that you weren’t sure if Oscar had eaten any of the afternoon tea. He put a biscuit to his lips and then put it back down, but you weren’t sure whether he had eaten any of it?---Correct.

Did you say - you said that Ms Stone?---No.

So what are you saying “correct” to, sorry?---I’m saying that it’s correct that he popped it to his mouth and I had only noticed a little bit missing, whether he had actually eaten or not. Either way, it did touch his lips and then he popped it back down and said he didn’t like it and I told him to pop it into the bin and if he would like some fruit he could have something from the fruit bowl.

So you are saying that he may or may not have eaten it? Is that really what you’re saying there to Ms Stone?---I said to Ms Stone that he popped it up to his lips.

You’re not being clear there are you about whether or not Oscar actually consumed the biscuit?---Correct.

You also said to her that there was a tiny piece missing from the biscuit?---Yes, which would indicate that either he had eaten a small piece or it was placed on his plate, but either way the biscuit came up to his lips.

So at this point - - -?---And I was - I was under the impression that he had had a small bite.” 34

[42] The totality of the evidence, coupled with the reports given to the investigation closer to the time of the events of 3 July 2015 lead me to the view that more likely than not Ms Nicolaou was aware at the time that the child had eaten some of the biscuit, but did not wish to admit to that knowledge when she was asked about it, preferring to downplay what happened, and allowing the view that the boy had such a small piece that it could not possibly have been dangerous to him.

[43] The evidence is also that at around 3:05 PM Ms Nicolaou had administered Ventolin to the child, believing that his coughing was as a result of asthma. 35 Ms Nicolaou’s evidence is also that the afternoon tea in her room was served at around 3:15 PM.36 Her initial statement given to Minifie Park ECC the same day as the incident is consistent with this sequencing – of Ventolin being administered before afternoon tea.37 Ms Davies questions this sequencing, putting forward that Ms Nicolaou had originally said to her in the interview on 6 July 2015 that the child started coughing when he was eating the pear offered to him after he refused the biscuit and that he “was due for another dose of Ventolin, so she assumed his coughing was a result of asthma”,38 which is consistent with the notes Ms Davies took of the conversation.39

[44] Consequently it appears more likely than not that Ms Nicolaou knew the child had eaten a small part of the biscuit and that when he started coughing, she took it to be a symptom of asthma, without connecting it with a symptom of anaphylaxis.

[45] I am further satisfied that the failure to recognise the child’s symptoms as an anaphylactic reaction was a real and serious oversight on Ms Nicolaou’s part. She had been trained in the subject; she was aware the child had such an allergy; and that his general predisposition to allergies was sufficiently serious to warrant the centre having an emergency bag for that purpose.

[46] That the situation passed through the three stages I have referred to above should reasonably be a matter of great concern. It could be argued that Ms Nicolaou’s involvement in the first stage was inadvertent – the child had asthma that day, and she did not know the biscuits contained egg.

[47] In relation to the second stage, while Ms Nicolaou’s evidence is that by that time the child had been taken out of her care and walked up to the office and the report to the Centre’s “nominated supervisor” the child was in the care of someone else, 40 that does not entirely answer the question of why there was no further action on Ms Nicolaou’s part. By the time of the second stage, when the child had vomited and the situation had become serious enough for him to be moved to an office, a reasonably attentive and diligent employee would have connected the circumstances with potential food contamination, if for no reason other than to rule it out as an explanation; yet there is no evidence that Ms Nicolaou did any such thing. The Centre is not so large to entirely explain Ms Nicolaou’s lack of injection into what was happening at that time.

[48] In the third stage as well as the second, while Ms Nicolaou appears as a bystander with events turning around her, it would more likely than not have been apparent to her what the circumstances really were. Ms Nicolaou appears in those stages to not have reflected on what had happened earlier in the day and let either her colleagues or the mother know that the child may have had some food that caused an allergic response, or that she had administered Ventolin taking his symptoms as asthma when they could well have been something else. In the context of the Centre’s community service and relatively small size, either would have been logical and proper steps for Ms Nicolaou. She could reasonably be expected to react in the same way as the investigation report recorded another employee, with no connection to the events, picking up the possibility of an allergic reaction.

[49] On balance, I find that Ms Nicolaou omitted to recognise, or act properly upon, the child’s symptoms as they became identifiable.

Incomplete emergency bag

[50] When the child’s emergency bag was retrieved by Ms Nicolaou it lacked a syringe for the administration of antihistamine.

[51] Ms Nicolaou’s evidence about the subject is that while she had responsibility for maintenance of the bag as a Lead Educator, such maintenance was done at the monthly staff meetings and that she did not attend the last one held on 2 June 2015. She argues that in such a case responsibility for the bag’s maintenance shifts to the Area Leader. 41 Ms Davies endeavours to answer that proposition with evidence that;

“Under the Shared Responsibility Flow Chart attached to the Dealing with Medical Conditions Policy, the Applicant, as the Lead Educator responsible for [the child], was responsible for ensuring that any required medications were kept up to date.” 42

[52] Further, Ms Davies’ evidence on the subject included;

“In response to my concern that the Applicant had failed to keep [the child’s] emergency medical bag up to date, in breach of the Dealing with Medical Conditions Policy, the Applicant simply said she was not present to do this on the day on which she would ordinarily have audited bags. For me, this ignored the fact that it was the Applicant’s responsibility, as Lead Educator, to ensure that required medications were up to date. If she was not able to check [the child’s] bag on the usual day, she needed to do so as soon as possible thereafter or delegate that task to someone else.” 43

[53] Within the scheme of Minifie Park ECC’s service to the community, policies and operating procedures, the omission from the emergency bag of a syringe was a serious one. It meant that the bag was not up to the job for which was intended; to provide a backup in the event that first level safety procedures put in place by Minifie Park ECC had failed.

[54] Ms Davies’ evidence in this regard was not the subject of significant cross-examination. However, neither was Ms Nicolaou’s contention that if she was absent from the monthly staff meeting, responsibility for maintenance of the bag fell to the Area Leader.

[55] On balance, and because I generally prefer Ms Davies’ evidence to that of Ms Nicolaou, I accept that Ms Nicolaou both had a responsibility to maintain the emergency bag, with such responsibility not being limited to the staff meetings she attended, and that she failed to maintain it to the standard required.

Reporting of events/responses to the investigation

[56] Further to these matters, which pertain to events prior to and during the event involving the child, are allegations made by Minifie Park ECC about Ms Nicolaou’s reporting of the events of the day, and in responding to the Centre’s questions;

“ Kristina failed to report the serious incident and other events leading to the event to her immediate manager.

• Kristina provided misleading and inconsistent details about the serious incident to a number of people, including her Area Manager, the person in charge on the day, the parent, and the Nominated Supervisor.” 44

[57] Ms Nicolaou denies both allegations.

[58] The first allegation involves both a question of whether she reported to a “nominated supervisor” the child’s symptoms as they arose, together with a question of whether she recorded sufficient information about what happened during the day, including the times of Ventolin administration. The nominated supervisor on the day was Vicki Stone. 45

[59] In substance Ms Nicolaou puts forward that she could not reasonably have foreseen that the symptoms were worse than they might have seemed. The child had come to the Centre in the morning with asthma and staff were told he may need to be given further Ventolin during the day. In relation to reporting the symptoms, her case is that she had no reason to believe they were symptoms of an anaphylactic reaction. 46 Ms Nicolaou also resisted the proposition that she had an obligation to make a report to her supervisor about giving Ventolin to the child during the day; since she did not have a concern about the child, she did not have an obligation to make the report.47

[60] Taking for one moment that the symptoms could reasonably be thought of as asthma and not a higher level allergic reaction, Ms Nicolaou neglected to record either the level of symptom she did perceive, or her administration of Ventolin. That oversight to record what events in the period before the child was taken to the office means there is no record of what happened. Ms Nicolaou invites a reading of the Centre’s policies and procedures in a way that requires the recording and escalation of events only when there is a “concern” about a child.

[61] In this regard, the Centre’s “Dealing with Medical Conditions Policy” requires educators such as Ms Nicolaou to;

“ [monitor] signs and symptoms of specific medical conditions and communicating any concerns to the Nominated Supervisor” 48

[62] On Ms Nicolaou’s construct, since the child was asthmatic and his Ventolin was being maintained throughout the day, and she held no concern about his condition, she was not required to either record or communicate any perceived changes in his condition, or that Ventolin had been given to him, unless those matters were of concern.

[63] Balanced against this is the evidence of Ms Liistro, about the information that was given to the child’s mother when in the carpark;

“8. His mother arrived a short time later to pick him up. While we were in the office with Vicki [Stone] and [the child], Rachele [Sulzberger] gave [the child’s mother] a post-it note with the times at which Ventolin had been administered to [the child] that day, and noted that she had not yet had time to fill in the proper administration form. This information should have been recorded in a medical administration form at the time at which the Ventolin was administered.” 49

[64] The subsequently prepared “Illness Record”, completed by Ms Sulzberger, shows that Ventolin was administered at 11:20 AM and 3:05 PM.

[65] On balance, I consider the oversight of recording what was seen and that Ventolin was administered, is important and one which Minifie Park ECC could reasonably expect to take up with Ms Nicolaou. In context though, it should be noted that the failure to record the details is, in and of itself, not one that appears to have exacerbated either recognition of the child’s state, or of Minifie Park ECC’s response to it.

[66] The allegation is also made that Ms Nicolaou gave either a misleading or inconsistent recollection of what happened. In substance this allegation surrounds the answers Ms Nicolaou gave Minifie Park ECC about whether the child had been served a biscuit and whether he had eaten any of it. 50 In Ms Davies’ investigation report, she particularised the allegation as Ms Nicolaou having “provided misleading and inconsistent details about the serious incident to a number of people, including her Area Manager, the person in charge on the day, the parent, and the Nominated Supervisor”.51 The allegation also connects with Ms Nicolaou’s answers about when she had given Ventolin to the child.

[67] Minifie Park ECC say the following about the allegation that Ms Nicolaou provided misleading or inconsistent answers to it;

“16. This failure to be forthcoming, to explain the full extent of what had transpired and to accept any responsibility for what occurred:

a. led to delays in establishing that [the child] had consumed a known allergen and identifying what needed to occur to prevent his reaction worsening;

b. indicated that the Applicant did not take [the child’s] health and safety seriously enough for someone who is directly responsible for his health and safety; and

c. was destructive of the Respondent’s necessary trust and confidence in the Applicant.” 52

[68] If the allegation is substantiated, then the capacity of the Centre to hold Ms Nicolaou to account may be diminished and its capacity to learn from the events and prevent a repetition will have been diminished as well. After consideration of the evidence I am satisfied that Ms Nicolaou gave a misleading or inconsistent account of what happened. Her responses were featured by prevarication; of endeavouring to avoid responsibility for what had happened, and being desirous of having others thought of as blameful.

[69] Looked at in totality, the allegations made against Ms Nicolaou amount to a valid reason for her dismissal and in forming this view I take the following factors into account;

• Ms Nicolaou’s failure to check the status of the food when she collected it from the kitchen was an important oversight but not one for which she should reasonably be taken to be wholly responsible. At the least, there appears to be a gap in the Centre’s procedures, or in the alternative, there may have been a failure by the kitchen staff to follow their part of the procedures. On its own, with no other factors, Ms Nicolaou’s conduct in this respect would likely warrant disciplinary action of some kind but likely short of dismissal.



• The failure by Ms Nicolaou to recognise the child’s symptoms is a very serious one. It led directly to a delay in treating the child because the symptoms were not recognised, or were underestimated.



• The deficiency of the emergency bag is also a serious one. In practical effect a serious allergic response had occurred, despite systems and procedures designed to ensure that such did not occur, in which case it was critical that the emergency bag be up-to-date to ensure the problem could be remedied or at least stabilised until further assistance could be given.



• Ms Nicolaou’s failure to follow the reporting and recording procedures is real and one for which she offers only a basic response.



• Ms Nicolaou gave misleading, or at least self-serving, answers to the Minifie Park ECC when it investigated her role in the incident. Her responses were likely to ensure she give a factual version to the Centre that was most favourable to her. It was not to her advantage to accept that, despite having a responsibility to do so, she had not checked the status of the biscuits when she collected them from the kitchen. Similarly it was not to her advantage to accept that she may have seen symptoms in the child that were more than asthma. It was disadvantageous to Ms Nicolaou to concede that she had administered Ventolin to the child after he ate a small part of the biscuit.

[70] The combination of these matters leads to the conclusion that Ms Nicolaou’s actions, albeit not hers alone, contributed directly to a serious allergic reaction in a young and vulnerable child in her care and that the event was more serious than would have otherwise have been because of her oversight in keeping the emergency bag fully resourced. She misled her employer about her role in these matters, or sought to deflect responsibility without proper cause. Ms Nicolaou had an obligation to be honest and forthright with Minifie Park ECC when it began investigating the circumstances of the events of 3 July 2015 in order that the centre could determine and take appropriate action to deal with what had happened. 53

[71] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship;

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 54

[72] The combination of these matters were not insignificant oversights on her part and as a result, I am satisfied that Minifie Park ECC had a valid reason to dismiss Ms Nicolaou. Its reason was “sound, defensible or well-founded”.

(b) whether the person was notified of that reason

[73] Ms Nicolaou was notified of the reasons for the employer’s decision to dismiss her, with Minifie Park ECC’s letter of termination setting out the reasons. 55

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[74] The Commission’s consideration of whether an employee has been given an opportunity to respond to an employer’s reason for dismissal is consequential to a finding there is a valid reason for dismissal. 56

[75] Prior to dismissal Ms Nicolaou was both informed of the allegations that Minifie Park ECC wished to discuss with her, in the meeting held on 13 July 2015, 57 and was given an opportunity to respond to them, which she did, by email on 17 July 2015.58

[76] While Ms Nicolaou complains that she was not given an opportunity to read the investigation report before the meeting on 13 July 2015, and that during the meeting her union representative asked for, and was denied an opportunity to see the report, or to allow Ms Nicolaou herself to read the report, 59 there is no general rule that an employee is entitled to see an investigation report.60 Instead, the test is that stated in the section itself, of whether Ms Nicolaou was given an opportunity to respond, before dismissal, to any reason related to her capacity or conduct. Despite contending that not having the report, or not being able to read it, amounted to an inability on her part to be able to respond properly to the employer’s allegations, the evidence is that she had the opportunity to respond, and did so in detail.

(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

[77] There was no refusal by Minifie Park ECC to allow Ms Nicolaou to have a support person present to assist in the discussions relating to her dismissal.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[78] The matters for which Ms Nicolaou was dismissed do not relate to unsatisfactory performance. Instead, they relate to her conduct on 3 July 2015 and afterwards.

(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

[79] While the employer is relatively small, reporting in its Employer Response Form that it had 32 employees at the time of Ms Nicolaou’s dismissal, it is not a small business within the meaning of the Act. I do not find that the size of Minifie Park ECC had any appreciable effect upon the procedures it followed in effecting Ms Nicolaou’s dismissal.

(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;

[80] I do not make any findings about the absence of dedicated human resource management specialists or expertise in Minifie Park ECC’s enterprise. The centre effected Ms Nicolaou’s dismissal through consultation between Mr Cockburn and its Committee’s other volunteer members. Whether or not those people have human resource management expertise is unknown.

(h) any other matters that the FWC considers relevant

[81] I consider it relevant that the child affected by the incident is very young and that his mother relied upon Minifie Park ECC to ensure a safe environment for him. That expectation was compromised by staff action and inaction. The fact that there was no ultimate lasting or irreparable harm to the child is not the relevant factor; instead what is relevant is that Ms Nicolaou’s actions contributed to the problem occurring and then exacerbated what happened.

[82] I also take into account that while Minifie Park ECC acknowledges that another employee also failed to properly identify the child’s anaphylactic symptoms, that employee was not dismissed because Minifie Park ECC was satisfied that the employee concerned was unaware the child had been served an unsuitable biscuit and genuinely thought he was experiencing asthmatic symptoms. Ms Davies’ evidence is that she thought the other employee acted appropriately in light of the information available to her and that disciplinary action was not appropriate. 61

[83] While I can note this proposition on the part of Ms Davies, this matter is decided on the evidence before me, and I am in no position to indicate whether there is sufficient difference between the other employee and Ms Nicolaou to be satisfied that a question does not arise of unfairly differential treatment. My decision in relation to Ms Nicolaou is dependent on the aggregation of matters referred to above. Had the entirety of the aggregate not been present, or certain elements, different findings may have flowed.

CONCLUSION AND ORDERS

[84] After consideration of the foregoing issues, I find that Ms Nicolaou was not unfairly dismissed within the meaning of the Act.

[85] Having made that finding, I must now dismiss the application. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Ms K Bicket (United Voice) on behalf of the Applicant

Mr J Tracey (of Counsel, instructed by Lander & Rogers) on behalf of Minifie Park Early Childhood Centre

Hearing details:

2015.

Melbourne:

25 November

Final written submissions:

8 January 2016

 1   Exhibit A2, Applicant’s Outline of Submissions.

 2   Exhibit R6, Witness Statement of Michael Cockburn, Attachment MC-3.

 3   Exhibit R2, Witness Statement of Rachel Davies, Attachment RD-9.

 4   Ibid Attachment RD-6.

 5 Ibid [31].

 6   Ibid Attachment RD–11.

 7   Exhibit R3, Witness Statement of Lauren Liistro, [17].

 8   Exhibit R2 Attachment RD-11.

 9   Ibid [25], [28].

 10   Ibid [29], [36]–[38].

 11   Ibid Attachment RD-11.

 12  Ibid Attachment RD-13.

 13 Ibid [48].

 14   Ibid.

 15 Ibid [49].

 16   Ibid [51]-[52].

 17   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

 18   Pearljit Singh v Metro T/A Metro Trains Melbourne[2015] FWCFB 6711, at [8], with reference to King v Freshmore[2000] AIRC 2019, at [7]–[9].

 19   Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

 20   Streeter v TelstraCorp Ltd (2008) 170 IR 1.

 21   Exhibit R2, Attachments 9, 11.

 22   Exhibit R3 [6]-[7].

 23 Ibid [14].

 24   Exhibit R2, Attachment RD–11.

 25   Ibid.

 26   Ibid.

 27 Exhibit A1, Witness Statement of Kristina Nicolaou, [9]-[12].

 28 Exhibit R3 [12].

 29   Transcript PN 185.

 30   Exhibit R2 Attachment RD-11.

 31   Ibid.

 32 Ibid [31].

 33   Ibid Attachment RD-10.

 34   Transcript PN 263-271.

 35   Transcript PN 337, 418.

 36   Transcript PN 258.

 37   Exhibit R2 Attachment RD-10.

 38 Ibid [31].

 39   Ibid Attachment RD-8.

 40   Transcript PN 313–314.

 41   Exhibit A1 [26]-[28].

 42 Exhibit R2 [34].

 43 Ibid [46].

 44   Ibid Attachment RD-11.

 45   Transcript PN 383.

 46   Transcript PN 402-408.

 47   Transcript PN 425-430.

 48   Exhibit R2 Attachment RD-5, 6.

 49 Exhibit R3 [8].

 50   Exhibit R1, Respondent’s Outline of Submissions, [15].

 51   Exhibit R2 Attachment RD-11.

 52 Exhibit R1 [16].

 53   Streeter v Telstra Corporation Ltd [2008] AIRCFB 15, (2008) 170 IR 1, at [23].

 54   Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.

 55   Exhibit R6 Attachment MC-6.

 56   Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41].

 57 Exhibit A1 [37].

 58 Exhibit R2 [45].

 59   Exhibit A1 [38]-[39].

 60   KDR Victoria Pty Ltd T/A Yarra Trams v N Farmer[2015] FWCFB 454, at [27].

 61 Exhibit R2 [54].

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