Mary Jane Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre - [2012] FWA 7680

Note: An appeal pursuant to s.604 (C2012/5547) was lodged against this decision - refer to Full Bench decision dated 5 March 2013 [[2013] FWCFB 762] for result of appeal.

[2012] FWA 7680

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mary Jane Read
v
Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre
(U2012/6941)

COMMISSIONER BISSETT

MELBOURNE, 13 SEPTEMBER 2012

Application for unfair dismissal remedy.

[1] This is an application by Ms Mary Jane Read (the Applicant) for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Read was dismissed from her employment with Gordon Square Childcare Centre Inc (the Respondent or the Centre) on 28 March 2012.

Background

[2] Ms Read worked for the Respondent for 21 years, for the last 12 years as Director of the Centre.

[3] On 6 March 2012 Ms Read arrived at work at approximately 7.15 am and opened the Centre. At 7.30 am a 3 ½ year old child (Child A 1) was dropped off by her father. The child was visibly upset. At 7.35 the father spoke to the child as to the time she would be collected that day and then left.

[4] Ms Read was then alone with the child in the infants’ room. 2

[5] At 7.38 am the phone rang. Ms Read moved from the infants’ room to the reception area. 3 As she approached the reception area, but outside the infants’ room, a second child (Child B) arrived with his father. Ms Read said to Child B words to the effect of ‘I’m glad you are here [Child B] because [Child A] is a bit upset. Perhaps you could cheer her up.’ Ms Read then walked back into the infants’ room with Child B and his father. The father unpacked his child’s belongings and said goodbye.

[6] At about this time another child arrived.

[7] At 8.17 am that day Child B’s father emailed his wife. The email said:

Morning, when I arrived this morning at 0740, Jane [the Applicant] was in the office and said “I am glad that you are here [Child B], [Child A] is upset this morning”.

I walked into the under three’s room with [Child B] and [Child A] was just standing in the middle of the room sobbing. [Child B] went over to her, and I told [Child B] to give her a hug and see if she wants to play with Wombat. Jane followed me into the room. [Child A] started to settle a little. [Another child arrived], [Child A] was still upset at this stage. I gave [Child B] a kiss and cuddle, Jess arrived and I headed off. 4

[8] On 12 March 2012 Child A’s parents lodged a serious complaint 5 with Ms Bridget Archer, the President of the Management Committee of the Centre (the Committee). The complaint, in summary, was that:

Child B’s mother phoned Child A’s mother at about 8.30 am on 6 March 2012 and told her that when her husband arrived with Child B that morning he found ‘Child A...sitting alone in the under 3’s room crying with all the doors to the room shut whilst Jane Read sat at the computer in the front office.’

When Child A’s mother arrived to collect her she found that her daughter had not been given breakfast.

[9] The complaint also stated that this was the second occasion on which Child A’s parents had complained of neglectful behaviour of the Applicant, the first time being when they found Child A and some other children playing under the front desk where there were power and computer cables while the children were in the care of the Applicant.

[10] Following the receipt of the complaint Ms Archer raised the issue with the Applicant and organised rosters to ensure the Applicant was not rostered alone with any children whilst the matter was investigated. The Applicant was given a copy of the written complaint.

[11] The Applicant responded to the complaint in a letter to Ms Archer on 15 March 2012. 6

[12] A meeting was held with the Applicant and her support person on 21 March 2012. Ms Archer and Ms Hamilton represented the Respondent. The Applicant read out a prepared statement during the meeting. That statement is the same statement the Applicant filed in these proceedings. 7 The Applicant stated that the practice of leaving Child A to settle had been suggested by the child’s parents and the door to the infants’ room was open at all times. Ms Archer indicated during the meeting that she had spoken to Child B’s father who indicated that he recalled the door between the reception area (where the Applicant was) and the infants’ room (where Child A was) being closed when he arrived.

[13] A further meeting was held with the Applicant and her representative on 28 March 2012. Ms Archer advised that the Committee had undertaken further investigations and that it was the view of the Committee that the Applicant’s admission of leaving the child unattended was a failure to supervise and a breach of childcare regulations and that this was deemed misconduct which was not compatible with the Applicant’s employment continuing with the Respondent.

[14] The Applicant subsequently received a letter notifying her of the termination of her employment. That letter said that the Committee had carefully considered the investigation and the Applicant’s response and concluded that the Applicant’s ‘actions were unacceptable in that [she] left a child unattended and unsupervised in the child care centre which constitutes a serious breach of [her] responsibility for the centre’. 8 The Respondent considered the Applicant’s actions to ‘constitute serious misconduct warranting summary dismissal’.

Evidence

[15] Evidence was given by the Applicant on her own behalf and for the Respondent by Ms Bridget Archer, President of the Committee; Ms Rachael Andjelkovic, President of the Committee from November 2009 to February 2010; Ms Jessica Bird, an employee of the Centre; and Mr Andrew Taylor, President of the Committee from March 2010 to January 2012.

[16] The evidence given was extensive. Only the evidence relevant to the matters I need to decide is set out here.

Ms Jane Read

[17] Ms Read’s evidence of the events of 6 March 2012 is that Child A was upset when she arrived and when her father left she was standing in the middle of the infants’ room sobbing. When the phone rang and she went to answer it Child A was out of her sight for no more than a couple of seconds. She decided to answer the phone as she thought it may have been a staff member calling in ill. When going into the reception area the door from the reception area to the infants’ room was never closed.

[18] Ms Read’s evidence is that Child A’s father did not tell her Child A had not had her breakfast but she ensured Child A did have lunch before she was collected by her mother.

[19] She says that Child A’s parents had given instructions that when the child was unsettled she was to be left to ‘come out of it in her own time’ and she was not aware that Child A’s mother or father rang the Centre that day to check on their daughter’s well being. When Child A was collected by her mother nothing was said of any concerns about Child A’s care that day.

[20] Ms Read says that apart from the 6 March 2012 event she had not left a child unsupervised at any other time and that she never suggested to anyone that as long as a door was open to another room you did not need to be in that room with the children.

[21] The Applicant agrees that on one occasion (in 2011) she was spoken to by Mr Taylor, then President of the Committee, about having a child under the desk in the front office area where there are computer cables and power leads. She rejected a suggestion the child was ‘crawling around’ under the desk. She confirms that the evidence of Mr Taylor on this matter is a true recollection of the event. The conversation with Mr Taylor had been a casual conversation, he was happy with the outcome of the discussion and she heard no more of it.

[22] The Applicant agrees that she was issued with a letter of warning with respect to her performance in late 2009 9 that was subsequently withdrawn in writing on technical grounds in February 2010.10 This letter stated that considerable concern still existed with regard to her work performance and detailed a number of areas of concern. She does not agree to all of the allegations with respect to her performance set out in the letter.

[23] The Applicant was aware of the duties of the Director of the Centre, and was familiar with the Centre’s Supervision Policy, the Duty of Care provisions, and the Staff Code of Conduct 11 and of the need to comply with the policies. She also confirms that she was at staff meetings in March and August 2010 where the requirement to supervise children properly was specifically discussed.12

[24] The Applicant agrees that the Centre failed its accreditation but that this occurred whilst she was on leave and she had worked with the Child Care Unit (of the State Education Department) to have the correct material provided to them.

[25] In her evidence the Applicant denied that she had employed a friend at a time when the Committee explicitly said there was to be no more employment. She agrees that she was responsible for the purchase of ‘soft-fall’ material for the play area but says that at the time there were problems with supply of the correct material. She says it took her a day longer than required by the Committee to contact the Tasmanian Fire Service. The incorrect Epi-pen training had been organised whilst she was on leave.

[26] The Applicant rejects any suggestion she had told a parent that she had been diagnosed with ADD and that this explained her behaviour at the time.

[27] The Applicant refutes the allegation that, in relation to the incident on 6 March 2012, there was inadequate supervision; that a child was left in distress; that a child was left whilst out of sight and a child was not fed although agrees that if this did occur it would be serious.

Ms Rachael Andjelkovic

[28] Ms Andjelkovic’s evidence is that as a member of the Committee there were a number of occasions when the Committee sought to performance manage the Applicant but each time an issue was raised with her it was treated as a personal attack. 13

[29] At the time the undated letter was written in late 2009 there were complaints from parents, staff issues were not being addressed, and staff were being hired despite the direction of the Committee. Problems continued through Christmas and January. The Applicant was given an explicit instruction by the Committee to write to the fire department the following day and she failed to do so. Money at the Centre was not properly accounted for and not banked frequently as was required by the Committee. As a result of the issues raised with the Applicant the Committee offered mentoring, counselling and support to the Applicant.

[30] The Committee asked that the Applicant be at the Centre at the end of the day when parents picked their children up so that she could deal with any issues the parents wished to raise. Whilst she did this for a couple of weeks she then reverted to her previous roster of leaving early.

[31] Ms Andjelkovic’s evidence is that the Applicant was responsible for doing all that was necessary to ensure the Centre gained accreditation and she failed to do so. When the Centre failed its first attempt at accreditation the Applicant blamed the acting Director as the Applicant was on leave at the time. The Committee had to take on the task of doing all that was necessary to bring the Centre up to standard for licensing and accreditation purposes but when the Committee approached the Applicant about things that needed to be done for this purpose the work was either not done or the Committee was told it was done when in fact it wasn’t.

[32] Whilst a complaint had been received of the Applicant using inappropriate language in front of a child Ms Andjelkovic agrees that she herself had used explicit language in front of a child at the Centre.

[33] Ms Andjelkovic also gave evidence that a complaint of harassment by a staff member arose from the Applicant indicating to a staff member how a particular policy should be implemented. She is not aware of different grades of soft-fall material or what standard is required at a child care centre and that substantial changes were made at the Centre by the Committee during a nine-week period when the Applicant was on leave.

[34] She is no longer on the Committee and was not involved in any events surrounding the incident on 6 March 2012.

Ms Bridget Archer

[35] Ms Archer gave evidence that upon receipt of the complaint relating to 6 March 2012 she sought advice from Ms Miller of the Child Care Unit. Ms Miller provided advice on sections of the Child Care National Law and Regulations in relation to supervision. In considering the complaint the supervision, duty of care and code of conduct policies were all considered.

[36] In investigating the complaint Ms Archer spoke to Child B’s father who said that when he arrived at the Centre on 6 March 2012 the Applicant was in the office, the door to the infants’ room was shut and the door from the kitchen to the infants’ room was open. Ms Archer viewed the site and found that there is no place in the reception area where you could have a full view of the infants’ room. Further, if you were sitting behind the reception desk, you would have difficulty seeing into the room at all. Having viewed the area she was concerned that there was no appropriate line of sight into the infants’ room. 14 Ms Archer agrees that you cannot see the door from the kitchen to the infants’ area from the reception area.

[37] Ms Archer agrees that Child B’s father did not mention in his initial email to his wife at 8.17 am that the kitchen door to the infants’ room was open.

[38] Upon receipt of the complaint there was some pressure from the Committee to stand the Applicant down whilst the investigation into the incident took place but Ms Archer felt it more reasonable to just ensure the Applicant was not supervising children alone at any time. 15

[39] The Committee considered that leaving a child, and particular one in distress, on its own whilst attending to other duties was a risk to the safety of the child. 16 The Committee considered that, even if the door to the infants’ room was open the Applicant should not have left a child unattended.17

[40] Ms Archer’s evidence is that she first became aware that a complaint was going to be made on Thursday 8 March 2012 when another Committee member saw her and said that Child A’s mother was trying to get in touch and wanted to make a complaint. She says that she and Child A’s mother had missed each other on the phone on Wednesday and Thursday. On the Friday she advised the Applicant that a complaint about her was being made and that once it was put in writing she would be given the details of it.

[41] Ms Archer says that the period within which the Applicant did not adequately supervise the child was between 7.30 am and 7.40 am on 6 March 2012. Whether these actions were a breach of the child care regulations was taken into account in making the decision to terminate the Applicant’s employment.

[42] Ms Archer says that the Small Business Fair Dismissal Code was considered in relation to the Applicant and that she does not have any HR expertise or child care management experience though believes one member of the Committee has some HR experience.

Ms Jessica Bird

[43] Ms Bird has been employed at the Centre for three years and says she has found the Applicant generally unapproachable and intimidating and not particularly friendly although she agrees that the Applicant accommodated her various requests for time off.

[44] She was not involved in the incident on 6 March 2012.

[45] Parents had not complained to her about the Applicant.

[46] She observed the Applicant not adequately supervising the children on a number of occasions including the Applicant not being in the room [with the children] and being in the office leaving children unsupervised. 18 She felt that the Applicant’s actions on these occasions breached the child care regulations. In particular she says that:

On 1 August 2011 the Applicant was at the computer in the reception area, from where she would not be able to react if an incident occurred with the children;

On 9 August 2011 the Applicant had children under the desk in reception;

On 19 August 2011 she saw the Applicant bringing two children into the infants’ room and believed the Applicant had the children in the office reception area. 19

[47] Ms Bird says that the Applicant told her it was ok to leave children alone in a room if the door to that room was open.

Mr Andrew Taylor

[48] Mr Taylor gave evidence about the events of August 2011 when, he says, parents of three children in care at the Centre made complaints against the Applicant. Each of the parents was a member of the Committee at the time. The substance of the complaints was that children were playing under the reception desk while the Applicant was sitting at the desk.

[49] The Applicant was told of the complaint, that it was serious, that such practice was a breach of child care regulations, and that it was a potential breach of the Centre’s licence and accreditation. The Applicant agreed that the incident occurred, apologised for it and said it would not happen again.

[50] Mr Taylor did not tell the Applicant that she was being given an official warning or that any repetition of this nature would result in her dismissal.

[51] Mr Taylor has no direct knowledge of the incident of 6 March 2012.

Submissions

Applicant

[52] The Applicant submits that the central issue to the matter to be determined is the events of 6 March 2012 and that other, earlier, events are peripheral.

[53] The Applicant submits that there is a conflict in the evidence and the only other witness to the incident on 6 March 2012, Child B’s father, did not offer a witness statement. The conflict in the evidence goes to where the child was sitting or standing and whether the door to the infants’ room from reception was open or closed.

[54] When the Applicant left the infants’ room it was for a matter of seconds and at all times she had a line of sight on the child. She left the room because the phone was ringing but she never answered it because when she got to the reception area Child B was arriving.

[55] The relationship between the Applicant and the Committee was strained but that is hardly novel in a relationship between an executive officer and a voluntary governing Committee. Mr Taylor’s evidence is that there were governance issues to be addressed.

[56] There is some doubt as to whether previous warnings actually exist.

[57] Whilst staff and Committee members had expressed concern with respect to the Applicant’s performance in the past no action had been taken about this.

[58] The Applicant submits that there were not three separate complaints made about the Applicant in August 2011 to Mr Taylor but rather one single complaint put forward by three sets of parents.

[59] The Applicant submits that

On the available evidence, it is difficult to escape the view that the Committee has taken the opportunity resulting from a minor complaint to terminate the director. The letter of dismissal does not suggest that there was any ongoing or recurrent deficiencies in Jane’s performance. 20

[60] The Applicant does not seek reinstatement but seeks compensation.

Respondent

[61] The Respondent submits that there are blatant and consistent breaches by the Applicant over an extensive period of time after continual warnings and attempts to manage performance issues. The facts demonstrate that there have been serious breaches of the child care legislation and ultimately serious misconduct on the part of the Applicant.

[62] There have been serious performance issues with respect to the Applicant that go to staff training on epi-pens, fire emergency procedures and breaches of the child to educator ratios.

[63] There has been a pattern of failure by the Applicant to successfully undertake her role as director and a number of serious performance issues.

[64] The evidence shows that there has been a pattern in the Applicant’s behaviour particularly:

Difficulties communicating with staff;

Employment of untrained friends;

Difficulty in answering simple wage and leave questions from staff;

Children being fearful of her;

An unprofessional attitude;

Problems with rostering;

Failure to follow a direction of the Committee with respect to the rate of pay for an employee.

[65] Evidence was given from Ms Andeljovic, Ms Archer and Mr Taylor of attempts to work with the Applicant and resolve issues including the clarification of roles between the Director and the Committee.

[66] The incident on 6 March 2012 was taken seriously. The Respondent sought assistance from the Tasmanian Chamber of Commerce and Industry (TCCI) and Ms Archer viewed the area where the incident occurred.

[67] The incident was considered so serious that Ms Archer advised the Child Care Unit.

[68] The evidence of Ms Bird demonstrates that the incident of 6 March 2012 was not an isolated incident and that there was a failure to comply with the legislative requirements.

[69] The Applicant submits that there were a number of performance deficiencies in relation to the Applicant’s behaviour and that she was performance managed in relation to these, ‘particularly by way of verbal discussions by Mr Taylor and written letters by the board of management, and also in the investigation conducted by Ms Archer’. 21 On the basis of the evidence, the Respondent submits that there was a valid reason for the termination of the Applicant’s employment, that the Applicant was notified of the reason for her dismissal and was given an opportunity to respond.

[70] The Respondent refers me to Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe 22 to support its contention that this was not a case of unfair dismissal.

[71] Should however I find that the Applicant was unfairly dismissed the Respondent submits that reinstatement is not appropriate

Was the Applicant unfairly dismissed?

[72] No submission was made to the contrary and I accept that the Applicant is protected from unfair dismissal.

[73] The legislation states:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

and

(d) the dismissal was not a case of genuine redundancy.

[74] It is agreed that the Applicant has been dismissed. It is not submitted that this is a redundancy.

[75] With respect to the Small Business Fair Dismissal Code, whilst the Respondent says that it is a small business I was also advised that, at the time of the termination of the Applicant’s employment, the Respondent had 15 employees including the Applicant. No submission was made as to any casual employees who were not, at the relevant time, employed on a regular and systematic basis. On this information I am unable to conclude that the Respondent is a small business.

[76] If I am wrong, for the reasons set out below, I do not consider that the Respondent has complied with the Small Business Fair Dismissal Code.

[77] The Small Business Fair Dismissal Code states:

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[78] Whilst the letter of termination provided to the Applicant suggests that she was terminated ‘with immediate effect for reason of serious misconduct’ her conduct was not seen to be of such a serious nature that she could not be left in the workplace. There was a period of three weeks between the incident and the decision to terminate the Applicant’s employment during which she continued to work at the Centre. The only measure put in place following the incident was that she was not to be rostered alone when responsible for children.

[79] With respect to her performance there is no evidence that the Applicant had been warned that she may be dismissed if her performance did not improve, either verbally or in writing. That performance issues may have been raised in the past is not sufficient evidence of warnings issued with respect to performance.

[80] There is not sufficient evidence that would allow me to conclude that the Respondent has complied with the Small Business Fair Dismissal Code.

[81] The remaining consideration is, therefore, whether the termination was harsh, unjust or unreasonable. On this the Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

[82] I now consider each of these matters.

Was there 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)?

[83] For a reason to be valid it must be ‘sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason’. 23

[84] In determining if there is a valid reason the inquiry of Fair Work Australia (FWA) is not limited to the reason given by the employer for the termination. 24 Section 387(a) of the Act requires that FWA take into account whether there was a valid reason, not if the reason given was a valid reason.

[85] The Applicant was dismissed from her employment because of her conduct in leaving a child unsupervised.

[86] In matters where the dismissal relates to the conduct of the Applicant, FWA must decide, on the basis of the evidence before it, if the conduct did, in fact, occur. 25

[87] The conduct relied on by the Respondent is that the Applicant left a child unattended and unsupervised.

[88] The Applicant agrees that she left the child alone in the infants’ room while she went into the reception area to answer the phone and that she did not have the child in her sight for a matter of seconds.

[89] The Centre has a Supervision Policy. 26 The aim of that policy recognises that carers have a duty of care to ensure areas accessible to children are safe and free from hazards. It states that

Carers effectively supervise children by actively watching and attending their environment. Carers should avoid carrying out activities that will draw their attention away from supervision such as reading or speaking on the phone. If carers are required to move away from actively supervising children they should make sure they are replaced by another carer.

[90] The policy then sets out a number of ways active supervision can be achieved including positioning of carers so they can observe the maximum area possible.

[91] There was evidence from Ms Archer that Child B’s father told her that the door was closed and the door between the kitchen and infants’ room was open. Child B’s father did not give evidence.

[92] The Applicant says the kitchen door was closed and the door to the infants’ room from the reception area was open.

[93] In his email to his wife Child B’s father does not mention doors being open or closed. Given the serious injury that could occur to a child unattended in the kitchen it is surprising that he should mention Child A’s distress to his wife but not something as dangerous as the door to the kitchen being open which could have serious consequences for his own child.

[94] On the basis of the evidence I am not satisfied that the door from reception to the infants’ room was closed nor am I satisfied that the door from the infants’ room to the kitchen was open.

[95] Whilst the door from reception to the infants’ room was open I am not satisfied that the Applicant’s conduct in leaving the room to answer the phone was adequate supervision of the child in accordance with the policy of the Centre. It is not that the child was out of sight for only a few seconds that is the critical matter, it is that the Applicant switched her mind to another matter - the phone ringing and potential absence of a staff member from work that day - and that she left the room, that means she was no longer giving her attention to the supervision of the child. Whilst such distraction is a matter particularly addressed in the policy, that the child was in a state of some distress makes the actions of the Applicant of greater concern.

[96] I find that the Applicant did leave a child unsupervised and unattended.

[97] The legislation governing the provision of child care services is the Education and Care Services National Law (Application) Act 2011 (Tas). That legislation states:

4. Adoption of Education and Care Services National Law

The Education and Care Services National Law, as in force from time to time, set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria –

(a) applies as a law of this jurisdiction; and

(b) as so applying may be referred to as the Education and Care Services National Law (Tasmania); and

[98] The Education and Care Services National Law Act 2010 (Vic) (the National Law) provides that:

165 Offence to inadequately supervise children

(1) The approved provider of an education and care service must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service.

Penalty: $10 000, in the case of an individual.

$50 000, in any other case.

[99] The Guide to the National Law and National Regulations (the Guide) is published by the relevant national regulatory body. 27 That Guide, whilst not replacing the National Law or Regulations, provides some assistance in understanding the requirements of the National Law with respect to supervision of children.

[100] The Guide states:

Educator-to-child ratios alone do not determine what is considered adequate supervision.

Supervision is critical to the safety of children. At its most basic level, supervision helps to protect children from hazards or harm that may arise in their play and daily routines. Adequate supervision means that an educator can respond immediately, including when a child is distressed or in a hazardous situation.

Effective supervision also requires educators to be actively involved with children. It is not the intention of this requirement that educators merely ‘stand back and watch’.

Every child should always be monitored actively and diligently. This means knowing where children are at all times. Children of different ages and abilities will need different levels of supervision. In general, the younger children are, the more they may need an adult to be physically present and close by to support and help them.

(my emphasis)

[101] The Supervision Policy of the Centre would appear to accord with what is set out in the Guide.

[102] The actions of the Applicant in removing herself from the room where Child A was on 6 March 2012 to answer the phone meant that she was no longer monitoring the child actively and diligently. As the Applicant admitted, she was thinking about whether or not a staff member was ringing in to say they were ill. Her actions were a breach of the requirements of the National Law as explained in the Guide and a breach of the Centre Policy.

[103] This is a serious issue. By her actions I find that the Applicant failed to provide adequate supervision of the child.

[104] During the hearing the Respondent also made submissions that the Applicant’s employment was terminated because of a series of performance issues.

[105] Many of the issues related to the Applicant’s performance relied on by the Respondent are generalised and are not supported by any evidence. Most relate to events that occurred prior to February 2010 with no evidence of continuing problems of that nature. Some evidence did relate to incidents in August 2011.

[106] Performance issues with the Applicant are said to include the inability to provide accurate advice to employees about their wages and leave entitlements (with no specific details provided or evidence of continual problems), children being fearful of the Applicant (with, at best, anecdotal evidence of one child crying and/or perhaps not warming to the Applicant), employment of untrained friends (of which there is no evidence) and circumstances around the disagreement on the rate of pay a particular employee was entitled to receive. Complaints such as these, with no supporting evidence, do not provide a sound basis on which a decision as to the validity of the dismissal can confidently be made.

[107] The letter given to the Applicant in late 2009 28 was clearly intended to be a written warning with respect to her performance. This letter was however withdrawn29 and cannot be relied on as a written warning. The letter that was subsequently issued to the Applicant (dated 22 February 2010) contains a number of generalised complaints relied on in these proceedings. The letter does not set out the areas of performance where improvement is required. It does state that ‘members of the Committee executive need to meet with you as soon as possible to discuss with you our expectations of your performance...’ but no evidence was given of such a meeting with the Committee executive or the establishment of any performance standards.

[108] I accept the evidence that the Applicant was instructed at the Committee meeting on 9 February 2010 that she was to write to the Tasmanian Fire Service the next day advising them of a date in three weeks’ time for them to attend a fire drill. I also accept that the Applicant did not do this the next day but did complete the task the following day.

[109] I accept the evidence that the Applicant was responsible, as Director of the Centre, for ensuring the Centre achieved accreditation and that it took some time for this to occur. I also accept that accreditation of the Centre is critically important. The evidence however is inconclusive as to whether the Applicant did not do all that was required of her in rectifying matters that were necessary for accreditation. This is not a matter on which I need to make a definitive finding.

[110] I accept the evidence that the Applicant, in preparing a roster, rostered a carer alone when that particular person could only work with supervision. I also find that she did this at the request of the then President of the Committee and that when she was directed to change the roster she did so. I also accept the evidence that, arising from this matter, the Applicant lodged a complaint against the President of the Committee with the Child Care Unit.

[111] As to the incidents of August 2011 raised in the evidence of Ms Bird the incident of 1 August was not put to the Applicant and there is no basis on which I could draw any inference as to the Applicant’s conduct from what Ms Bird observed on 19 August. I therefore do not rely on these two events. The incident of 9 August is that referred to by Mr Taylor and is dealt with below.

[112] I accept the evidence of Mr Taylor of the incident in August 2011 where the Applicant allowed a child to play under the desk. I also accept that there are computer and power cables under the desk. I also accept that Mr Taylor spoke to the Applicant and the matter was resolved without any formal warning being given to the Applicant. Whilst no formal warning was given to the Applicant this does not mean I cannot consider the conduct of the Applicant on that occasion.

[113] I do find that the Applicant allowed at least one child and possibly more to play under the desk where there are computer and power cables whilst she worked at that desk. Such action by the Applicant placed the children at risk of harm.

[114] In considering all of the conduct and capacity issues with respect to the Applicant I find that her conduct in allowing children to play under the desk where there are power and computer leads and her conduct in failing to provide adequate supervision of a child in accordance with the National Law and Guidelines and Centre Policy as occurred on 6 March 2012 provide a valid reason for the termination of the Applicant’s employment.

Whether the person was notified of the reason

[115] The Applicant was notified of the reason for the termination of her employment as it related to the incident on 6 March 2012. She was advised that a complaint was made against her on 9 March 2012 and was given the details of the written complaint when it arrived. In the two meetings held with the Applicant it was made clear to her what the complaint was.

[116] As to those matters related to the August 2011 incident and the Applicant’s performance she was not advised that these were reasons for the termination of her employment.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[117] The Applicant was given a number of opportunities to respond to the reason for her dismissal. She made a written response to the complaint from Child A’s parents, attended a meeting with representatives from the Committee where she was given an opportunity to respond and made a statement, and attended a further meeting with representatives of the Committee where she was advised that it was the view of the Committee that her actions were not compatible with her on-going employment.

[118] I am satisfied that the Applicant was given an opportunity to respond with respect to the incident on 6 March 2012.

[119] The Applicant was not given an opportunity to respond with respect to any other matters at the time of the termination of her employment. All of the matters had been raised with her in the past either in writing or orally.

Refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[120] The Applicant had a support person at both meetings held with the Respondent.

Whether the person had been warned about that unsatisfactory performance before the dismissal

[121] To the extent that the dismissal of the Applicant related to performance the Applicant had not been satisfactorily warned with respect to those performance issues.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[122] The Centre is a small local community child care centre. It is run by a committee of volunteers. There is no doubt that the size of the organisation and that its management of volunteers would impact on the procedure used in effecting the dismissal.

[123] This said however the Committee has, with respect to the events of 6 March 2012, sought to ensure procedural fairness to the Applicant. She received a copy of the complaint; she was given an opportunity to respond; and she attended a meeting with Committee representatives.

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

[124] Again, the size of the business and its lack of access to specialist human resource expertise would have a detrimental impact on the procedures followed but, given this lack of expertise, the Committee did ensure procedural fairness to the Applicant.

Any other matters

[125] I have found that the action of the Applicant in leaving the child alone whilst she went to answer the phone provides a valid reason for the termination of her employment. Having said this it should be noted that it is the rostering policies of the Committee that resulted in the Applicant being the sole carer on duty at this time of the day.

[126] The Applicant was also the Director of the Centre and, as such, had responsibilities to ensure adequate staffing for the Centre. Rostering must be adequate in the early morning to ensure that administrative and management tasks can be undertaken and children supervised at the same time. If it is to be the director rostered on first thing in the morning then there needs to be another person rostered so that the director can attend to management and staffing issues if required.

[127] Had another person been rostered from 7.30 am it is most likely that the phone could have been answered without any risk to the child.

[128] There appears to have been simmering tensions between the Applicant and the Committee since at least 2009. Whilst I appreciate that a changing Committee, as members leave and new members join, may impact on continuity and uniformity in approach to management of the staff of the Centre it is imperative that performance issues are documented, performance standards are known and the consequences of not meeting performance standards is made clear to all staff.

[129] While such a process was commenced with the Applicant in 2009 there was no follow through. To rely on the 2009 issues when there was no follow through and inadequate documentation as to the performance standards required as one of the reasons for termination of the Applicant’s employment is not fair to the Applicant.

[130] In dealing with performance matters, broad generalisations should be avoided. An employee cannot be expected to respond to performance concerns if these are not provided in sufficient detail. In fairness to staff, where a complaint is made the staff member concerned must be given adequate information to enable them to respond.

Was the termination harsh, unjust or unreasonable?

[131] The meaning of harsh, unjust or unreasonable was considered in Byrne and another v Australian Airlines Limited: 30

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 31

[132] In this case Child A was not harmed by the actions of the Applicant in failing to properly supervise her. Nor were the children playing under the desk harmed. However, there cannot be half measures when very young children are entrusted into care. The role of carer is one of great responsibility.

[133] Whilst I accept that on 6 March 2012 the Applicant turned away for a very short period of time it was the reason for doing so - that she had switched her mind to other matters and hence was not adequately supervising the child - that is of concern. The Applicant was not, at the time, providing the supervision required. She left the child in a vulnerable position.

[134] The same is true of the incident in August 2011. By allowing children to play near electric and power cables the Applicant left the children in a vulnerable situation.

[135] In both incidents that Applicant was fully in control of the situation. It was her direct action that exposed the children to harm. It could have been avoided.

[136] I accept that the Applicant has a long history of working in the child care sector and that she devotes her own time to helping children in need. Her experience however should have made her even more aware of the need to properly and adequately supervise children.

[137] I have had regard to the environment the Applicant works in. Whilst on the surface the incidents of August 2011 and March 2012 may seem not to be of such consequence, when placed in the context of very young, pre-school aged children who have been placed in the care of the Applicant and the Centre, such failings in supervision take on a level of seriousness that cannot be ignored.

[138] Had the reason for termination not related to child supervision issues I may have reached a different conclusion.

[139] In all of the circumstances I am satisfied that the termination of employment was not harsh, unjust or unreasonable.

Conclusion

[140] The application for relief from unfair dismissal is dismissed.

COMMISSIONER

Appearances:

S Cleaves for the Applicant.

C Garwood for the Respondent.

Hearing details:

2012.

Launceston:

August 8, 9.

1 It is not necessary to identify the children involved by name. The children are identified as Child A and Child B.

2 This room was variously referred to as the ‘under 3’s room’ and the play room and is shown on document MFI2 as the ‘infant area.’ The term ‘infants’ room’ has been used throughout the decision in reference to this area.

3 This area is shown on MFI2 as ‘OFFICE vinyl’.

4 Exhibit R2, attachment G.

5 Exhibit R2, attachment G.

6 Exhibit R2, attachment H.

7 Exhibit A2. See also Exhibit R2, attachment H.

8 Exhibit R2, attachment K.

9 Exhibit R2.

10 Exhibit A10.

11 Exhibit R2, attachment A.

12 Exhibit R2, attachment E.

13 Transcript PN872.

14 Transcript PN1413.

15 Transcript PN1294.

16 Transcript PN1217.

17 Transcript PN1267.

18 Transcript PN1468.

19 See Exhibit R3, paragraph 4.

20 Transcript PN1717.

21 Transcript PN1763.

22 [2010] FWA 7891.

23 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373.

24 MM Cables (A Division of Metal Manufacturers Limited) v Zammit, AIRC, Print S8106, at [42].

25 King v Freshmore (Vic) Pty Ltd Print S4213, at [24].

26 Exhibit R2, attachment A.

27 Australian Children’s Education and Care Quality Authority (ACECQA). See

28 Exhibit R2, attachment B.

29 Exhibit A10.

30 (1995) 185 CLR 410.

31 (1995) 185 CLR 410, 465.

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