Miss Catherine Gow v Pine Rivers Early Learning and Development Centre

[2012] FWA 8267

[2012] FWA 8267

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Catherine Gow
v
Pine Rivers Early Learning and Development Centre
(U2012/5939)

DEPUTY PRESIDENT SWAN BRISBANE, 27 SEPTEMBER 2012

[1] This application is made by Ms Catherine Gow [the applicant] who seeks an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 [the Act] from her former employer Pine Rivers Learning and Development Centre [the respondent/the Centre].

[2] This application is heard pursuant to the Small Business Fair Dismissal Code [s. 388 of the Act which states as follows:

“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.”.

Background to the employment relationship

[3] The applicant was employed by the respondent from 21 May 2008 until the date of her dismissal on 12 March 2012. She was employed on a full time basis in the position of Assistant Child Care Worker and held a Certificate 111 in Children’s Services. The employment was covered by the Children’s Services Award 2010.

The incident which caused the dismissal

[4] The respondent dismissed the applicant for allegedly slapping a child in her care at the respondent’s Centre.

[5] The applicant was working in the Blue Room of the Centre, which caters for children aged three to four, whilst relieving the Senior Educator, Ms Heijboer who was taking a meal break.

[6] When Ms Heijboer was in the kitchen next to the Blue Room on her break, she heard the applicant yelling at a child M.

[7] The applicant was heard to have yelled “Stop scratching me M”.

[8] Ms Heijboer says she saw the applicant raise her hand before slapping M across the face.

[9] Ms Heijober says that she entered the Blue Room and that the following exchange occurred:

● Ms Heijboer “Tell me I just didn’t see that. Did you just slap M across the face?”

● Applicant does not respond

● Ms Heijboer “Did you just slap M across the face?”

● Applicant “Well, she tried to scratch me!”

● Ms Heijboer “That is no excuse, if it gets too hard you put her in the yellow room, there is no excuse to hit a child.”

[10] The respondent says that another employee, Ms Harris witnessed the incident.

[11] The applicant’s version of the incident is that whilst trying to encourage M to have her sleep (as the other children were doing) she crouched down to M’s level because M had a history of biting and scratching. The applicant says that she had raised her hand, but only to take M’s hand and in doing so her fingers had lightly tapped M across the face.

[12] The applicant claims that Ms Heijboer was standing some 30 metres away and had only viewed the incident by glancing at her through a window. Upon being cross-examined, the applicant agreed that the distance was considerably less - around 7.5 metres.

[13] The applicant said she was unable to respond to Ms Heijboer’s questions because she was shocked at the assertion that she had slapped a child.

[14] Ms Heijboer said that she immediately reported the incident to Ms Dolby (Assistant Director of the Centre). Ms Heijboer stated that when she returned from her break, the applicant had approached her saying that she was “sorry - she just kept scratching me”. Some short time later, the applicant gave a letter of apology to Ms Heijboer which stated “I didn’t hit M, sorry for upsetting you”.

[15] Ms Harris (Senior Educator at the Centre) was in the kitchen with Ms Heijboer when the incident occurred. She claims not to have seen what had occurred with the applicant and M, however she saw Ms Heijboer react suddenly. She noted that Ms Heijboer’s body had become tense and she had walked quickly into the Blue Room. She did hear the conversation, as previously recounted between Ms Heijboer and the applicant.

Investigation undertaken by the respondent

[16] Ms McGhie is the Director and Licensee of the Centre. Ms McGhie’s husband is also a Licencee of the Centre.

[17] Ms Dolby had reported the incident to Ms McGhie shortly afterwards. Ms McGhie undertook to check on M and observed staff applying an ice pack to her face whilst cuddling and reassuring her.

[18] Upon speaking to the applicant and asking her what had happened, Ms McGhie said that applicant said she was sorry and that she would never hit a child and further added “that it might have been an accident and then said that she didn’t mean it, it was like a reflex action”. [Exhibit 8 - point 11]

[19] Ms McGhie claimed that the applicant’s reaction to her questioning was out of character for her in that her responses showed no aggression. She believed that the applicant was usually aggressive and outspoken if she felt she was ever under threat. It should be noted that the applicant had been the subject of two prior disciplinary warnings from the respondent, for matters unrelated to the type of issue in question in this hearing.

[20] Ms McGhie by then had spoken to the applicant, Ms Heijboer and Ms Harris. Ms McGhie had to postpone the discussions as she had not had an opportunity to discuss the matter with Ms Dolby.

[21] Ms McGhie advised the applicant that she needed to think about the matter over the week-end. Ms McGhie’s instructions at that time were that the applicant was not to be left alone with any of the children.

[22] On Monday 12 March 2012, Ms McGhie asked to speak to the applicant and advised her that she was dismissed from her employment. Ms McGhie was required to report the incident to the Early Education Officer of the Office of Early Childhood Education and Care. With relevant documentation completed, and the appropriate Department notified, Ms McGhie was advised that the incident had been reported to the Child Safety Officer at the local Police Station.

[23] Relevantly, the Child Protection Policy at the Centre states:

“Protection of Children Within the Service

1. All Educators must be aware of and informed about the current Child Protection law and understand their obligations under that law.

2. It is an offence under the National Law to subject a child being educated and cared for to any form of corporal punishment, or any discipline that is unreasonable in the circumstances”.

[24] The applicant did not disagree that the meetings previously mentioned occurred, however she claimed not to have had any warning that she would be dismissed from her employment.

[25] The applicant had represented herself in this matter, assisted by her mother. Prior to final submissions being made, the applicant had sought to enter into settlement discussions with the respondent. This somewhat unusual request was rejected by the respondent.

Conclusion

[26] The issue in contention in this matter relates to one discrete incident. Did the applicant slap a child under her care at the centre, across the face?

[27] In considering the evidence given around this point, I have not found the applicant to be a credible witness and as such I have been unable to accept her evidence. I believe that she did slap the child and that this was observed by Ms Heijboer. I found Ms Heijboer to be a straightforward and credible witness. While Ms Harris did not view the incident, I have accepted her corroborating evidence to the extent that something of some moment had occurred through her observation of Ms Heijboer at the time of the incident.

[28] In my view, the respondent investigated the matter sufficiently and fairly enough to have formed the view that the incident as described by Ms Heijboer did occur.

[29] The incident was of a very serious nature and one that could only be followed by termination of employment and reporting by the respondent to the appropriate authorities.

[30] The application is dismissed.

DEPUTY PRESIDENT

Appearances:

C. Gow for the Applicant

G. Muir for the Respondent

Hearing details:

2012

Brisbane

27 August 2012

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