[2015] FWC 4541

FAIR WORK COMMISSION

DECISION

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

Mrs Jeanette Mutch
v
Total Childcare Solutions Australia T/A Cedar Avenue Early Learning
(U2014/269)

DEPUTY PRESIDENT ASBURY

BRISBANE, 18 AUGUST 2015

Application for relief from unfair dismissal.

1. BACKGROUND

[1] Ms Jeanette Mutch applies for an unfair dismissal remedy with respect to her dismissal by Total Childcare Solutions Australia T/A Cedar Avenue Early Learning (Total Childcare). Ms Mutch was employed by Total Childcare as an Educator from 14 March 2011 until her dismissal on 16 January 2014.

[2] Ms Mutch was dismissed for improper treatment and management of children under her care and in particular an incident on 8 January 2014. Ms Mutch denies the allegations and asserts that there was no valid reason for the dismissal, that the process adopted by Total Childcare in investigating the alleged misconduct was not thorough and that the dismissal was procedurally unfair.

[3] The application was made on 1 February 2014, within the time required in s. 394(2) of the Act. It is not in dispute that Ms Mutch is a person protected from unfair dismissal as defined in s.382 of the Act. Total Childcare is not a small business and the dismissal was not a case of genuine redundancy. The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties.

[4] Both parties sought permission to be legally represented. Permission was granted on the basis that it would allow the matter to be dealt with more efficiently given the complexity arising from the serious implications of the allegations made against Ms Mutch.

[1] Ms Mutch gave evidence on her own behalf. 1 Ms Tanya Margaret Sinclair, Lead Educator, also gave evidence on Ms Mutch’s behalf. 2 A number of character references were filed by Ms Mutch. At the commencement of the Hearing in relation to this matter I put to Ms Mutch’s representative that general character references of persons not present during the alleged incidents or meetings were of little relevance or assistance to the Commission. Ms Mutch did not seek to rely on, or tender these documents at the Hearing.3

[2] Evidence on behalf of Total Childcare was given by:

• Ms Jennifer Anne White, Nominated Supervisor/Director; 4

• Ms Aisha Jakupovic, Director; 5

• Ms D, the grandmother of a child and who made a complaint against Ms Mutch; 6

• Ms Deborah Olivia Martin, Educator; 7 and

• Ms Karlee Cowie, nominated Supervisor. 8

[3] Ms White tendered notes that were said to have been a contemporaneous record of discussions with various parties involved in incidents relating to Ms Mutch’s dismissal. 9 Issue was taken with the veracity of those notes on the basis that they were written on pages of an exercise book that were then torn out of the book. Ms White said that she kept the exercise book as a running record of events and tore out the pages relating to Ms Mutch so that they could be placed on her file. I do not accept that the notes are fabricated and they are instructive about the times at which various events occurred, in circumstances where the evidence of witnesses is not particularly helpful. Accordingly I have taken the notes into account in setting out the sequence of events that led to Ms Mutch’s dismissal.

2. EVIDENCE

2.1 The incident on 8 January 2014

[4] The incident that led to Ms Mutch’s dismissal was alleged to have occurred on Wednesday, 8 January 2014. The evidence of Ms White is that on 8 January 2014, Ms D - the grandmother of a child enrolled at the Centre, then aged 3 and a-half years - reported that she had witnessed Ms Mutch push her granddaughter. Ms D further reported that she had previously witnessed Ms Mutch engaging in similar conduct on two occasions, one involving Ms Mutch grabbing a child.

[5] Ms D’s report was made to Ms White’s Assistant, Ms Pitman Suttie, who passed on the information to Ms White. Ms Pitman Suttie said that she saw Ms D while she was collecting her own children from the Centre and that Ms D looked visibly angry and upset. Ms Pitman Suttie said that Ms D reported to her that she had observed Ms Mutch speaking aggressively to her granddaughter before physically pushing the child. Ms Pitman Suttie also observed that Ms D’s granddaughter looked teary and did not speak to her. When Ms Pitman Suttie entered the Toddler Room to collect her children, Ms Mutch rushed out of the room and into the bathroom without speaking to Ms Pitman Suttie.

[6] Ms Pitman Suttie reported Ms D’s complaint to Ms White on the morning of Thursday, 9 January 2014 and then had no further involvement in the matter. Upon receiving the report from Ms Pitman Suttie, Ms White made contact with Ms D and asked her to put her concerns about Ms Mutch into writing so that the matter could be investigated. Ms White’s notes of this conversation (appended to her supplementary witness statement) record she spoke to Ms D on Thursday, 9 January and that Ms D stated that she had witnessed Ms Mutch place her hands on her granddaughter’s back and “shove” her forward to move her. The notes further record that Ms D said that this was the third time she had seen Ms Mutch doing things that were unacceptable, including grabbing a child by the arm.

[7] As requested by Ms White, Ms D sent an email to Ms White at 3.45 pm on Tuesday, 14 January 2014 documenting her complaint in the following terms:

“Hi sorry for my late reply ive been busy.

as i said in my phone conversation this is the third time time ive seen [Ms Mutch] aggressive with the children.

The first time was late january 2012 i was taking my granddaughter to class with her mother and witnessed [Ms Mutch] grab a child by the arm i commented to my daughter about it and she made a complaint to the director.

The next time was just before christmas when i witnessed [Ms Mutch] with a very young boy who was clearly very upset and almost choking on his tears she offered him no compassion but instead insist that he eat his food he then walked over to the other assistant who was a very large younger girl who also ignored his cries for comfort and [Ms Mutch] said to her make him eat his food.

The next time was wed the 8^th jan when i went to collect my granddaughter and upon entering the room i witnessed [Ms Mutch] push [name removed] away from another girl called [name removed] who was standing next to [Ms Mutch] i looked around the room to see if there were any other assistants in the room and saw the same large girl just sitting on the couch. my granddaughter walked out of the room and stood behind the door and burst into tears and refused to go back in when i asked her to come with me to collect her bag. when I was leaving the centre i spoke to one of the assistants who was off duty but took my number and passed it on to you.” 10

[8] Ms D’s oral evidence about the incident was as follows:

“Okay, so I've gone in to pick up my granddaughter from the centre. It was late in the afternoon and when I've entered the glass door I saw Jeanette, the child care worker. My granddaughter's gone up towards her and as she's got in very close proximity of Jeanette, Jeanette's actually pushed her out of the way, and this has upset my granddaughter. She's gone to the door. I followed her, opened the door. She's run out, I've gone out and then she burst into tears so I consoled her. I asked her to come back in while I collected her bag. She refused to come back in and then I proceeded to leave the child care centre. I've run into another worker who I thought was on duty, who actually wasn't on duty, and said that I was concerned about what I'd seen and that I wanted to report the incident. She took my mobile number and then the director phoned me, following that incident.” 11

[9] Ms D does recall that another child was present at the time but does not recall that the children were fighting over anything. 12 Ms D recalls Ms Mutch’s demeanour following the incident as follows:

“…when I walked into the room, and it was happening as I walked in, I feel that Jeanette was a bit shocked to know that - seeing that I had just actually walked into the room. That was - - -

Why do you say you felt that she was shocked?---Because I guess - because I'd just witnessed her do something to my granddaughter which I found to be not with - the right thing to be doing in a child care - let alone anywhere, but in a child care centre especially if you're one of the teachers.” 13

[10] Ms D confirmed that she did not complain that Ms Mutch had spoken aggressively to her granddaughter during the 8 January incident. 14 Ms D maintained however that she did see Ms Mutch push her granddaughter and rejected the proposition that she had simply inferred that Ms Mutch had pushed her granddaughter because her granddaughter was upset. In response to a question about why she did not raise this issue with the other child care worker in the room, Ms D said:

“…Because I don’t think that she – to be honest I was actually in a little bit of shock so I’ve just gathered my granddaughter, and I really didn’t particularly know what I was going to do at that very point of time. Having witnessed Ms Mutch on two separate occasions be what I believe is aggressive, I had realised that enough was enough and so I was going to make a complaint. And the fact that the – That I ran into one of the workers outside of the door was when I addressed it with her. The what – the reason I didn’t do it with the other child care worker in the room is I didn’t want to make, I suppose, a scene inside the room while there were children present as well.” 15

[11] Ms D agreed that there was another little girl in the vicinity of Ms Mutch when the incident occurred but said that she did not see anything to make her think that the two girls were fighting. Under cross-examination Ms D maintained that she had witnessed Ms Mutch pushing her granddaughter and that the other two incidents referred to in her email of complaint had occurred. Ms D disputed the proposition that she had gone out of her way to make trouble for Ms Mutch and said that she did not know Ms Mutch outside the childcare centre.

[12] Ms Martin said that she overheard part of the conversation between Ms D and Ms Pitman Suttie on 8 January 2014 during which Ms D stated that she wished to formally report an incident involving Ms Mutch and Ms D’s granddaughter. Ms Martin said that when she returned to the toddler room she saw Ms Mutch looking stressed and eager to leave the room. In her oral evidence Ms Martin said that Ms D appeared to be quite unhappy and very concerned. Ms Mutch was also behaving as though she was stressed around the children and was shoving chairs in too roughly. Ms Martin later walked by the bathroom and saw Ms Mutch with her hands on her head.

[13] Ms Mutch denied that she pushed a child. In her witness statement 16 Ms Mutch said in relation to the alleged incident on 8 January 2014 that:

“I have been thinking about the allegation in my head over and over. I do remember that one of the children had pushed another child. I was trying to explain to a child that he shouldn’t push another child. I can’t remember what room this happened in or when it happened.

I can’t remember anything because I didn’t do anything drastic. If I had actually pushed a child another member of staff would have seen my action toward to the child and asked what happened.” 17

[14] In her witness statement in reply, Ms Mutch said that Ms D’s granddaughter had pushed another child after the other child approached her and wanted a book that Ms D’s granddaughter was holding. 18 Ms Mutch states that she spoke to Ms D’s granddaughter about the incident and that both children were upset by it. Under cross-examination, Ms Mutch maintained that she had never pushed a child and denied that she was distressed because she was observed doing this by the grandmother of a child in her care.

[15] At some time after Ms Mutch was dismissed, Ms White reported the incident of Monday, 8 January 2014 to the Department of Child Safety. The incident is described as: “A complaint was made by a grandparent of a child attending the centre that an educator at the service had pushed a child away from another child”. The Corrective Action Plan attached to the Report indicates that the plan of action to prevent further occurrences is that: “Jeanette Mutch was terminated from her employment on 16/01/2014 for serious misconduct.” The complaint and statements tendered in the hearing of Ms Mutch’s unfair dismissal application were also provided to the Department of Child Safety. I infer from the range of dates in the documentation that it was commenced on 13 January and lodged after 16 January 2014.

2.2 Ms Mutch’s employment record

[16] In its Form F3 Response to Ms Mutch’s application for an unfair dismissal remedy Total Childcare made a number of assertions about Ms Mutch’s employment record and maintained that the incident on 8 January 2014 was the fifth reported incident of Ms Mutch mistreating children under her care. Those assertions were summarised in the Form F3 as follows:

January 2012: clients of Total Childcare (parents of children) made a written complaint alleging that they had witnessed Ms Mutch grab a child by the upper arm and act aggressively towards the child.

December 2013: the parents of a child made a written complaint about witnessing Ms Mutch with a young boy who was upset and “almost choking on his tears” and asserting that Ms Mutch showed no compassion.

On 17 December 2013, Ms Mutch was issued with a warning as a result of leaving a child unattended in the playground.

8 January 2014 the parent of a child under Ms Mutch’s care made a written complaint alleging that she saw Ms Mutch place her hands on the child’s back and “shove” her.

10 January 2014 Ms Mutch was observed by fellow staff members yelling at children in her care on two occasions and when staff were generally reminded of proper voice levels Ms Mutch responded by stating that “it is my culture to be loud” and was told that she would need to change the way that she spoke to children.

13 January 2014 while being monitored due to the complaint made on 8 January 2014 Ms Mutch was observed using an improper voice while talking to children and was instructed by her supervisor to use an appropriate voice and approach difficult situations in a different manner.

14 January 2014 Ms Mutch was observed to be struggling with children who were not listening and snatching a toy from a child and using a “grumpy voice”.

[17] This was said to constitute “a documented history of [Ms Mutch] being abrupt, abrasive, callous and loud with children under her care”. It was also asserted that there were two instances of written complaints being made following Ms Mutch’s improper physical handling of children including aggressively grabbing a child by the arm and shoving a child in the back.

[18] The assertion that Ms Mutch had been subjected to a number of warnings was continued in the “Defence Submissions” filed by Total Child Care on 15 July 2014 in response to Directions issued by the Commission in relation to the hearing of Ms Mutch’s application for an unfair dismissal remedy. In paragraph 13 of the “Defence Submissions” it is stated that Ms Mutch: “snatched from children, physically pushed children and persisted in adopting a loud aggressive tone when dealing with children in her care, despite repeated prior warnings in this regard” and that this amounts to serious misconduct warranting dismissal.

[19] Ms White’s evidence was that during the period of August 2013 and January 2014, on a number of occasions she was able to hear raised voices in the toddler rooms. Ms White “being one hundred percent sure it was [Ms Mutch’s] voice” would go into the room and ask all staff to be mindful of the level and tone of their voice. Ms White said that Ms Mutch was dismissive of Ms White’s concerns stating that being loud was “part of her culture”. 19 Ms White also said that in the days following the incident on 8 January 2014 she worked with Ms Mutch to observe her with the children to ensure there were no altercations or difficulties arising between Ms Mutch and the complainant family. During this period of observation (the dates of which were not disclosed in Ms White’s evidence) Ms White states:

“...I noticed [Ms Mutch] appeared to have difficulty managing the children in her care and she would become quite abrupt and snappy toward them. I also witnessed her snatching toys from their hands and raising her voice at them.

In particular, I recall an occasion where two brothers were arguing over a toy. [Ms Mutch] responded by snatching the toy away from the boy who had been holding it and, with a raised voice, said, ‘Don’t do that!’.

In order to demonstrate a more appropriate practice, I walked over to the boys, gently placed my hand on the child who had been holding the toy, and said words to the effect of, ‘remember that we need to share the toys with one another’.” 20

[20] The extent of Ms Jakupovic’s evidence was that after the incident of 8 January 2014 “on one occasion” she was in Ms White’s office with Ms White when she heard Ms Mutch’s voice “reverberating” from the toddler room. 21 Ms Jakupovic went to the toddler room to address the staff and told them to be mindful of their volume and tone of voice.

[21] Ms Mutch agreed that a parent complained about her leaving a child in the playground and that she received a written warning on 17 December 2013 in relation to that incident. The written warning indicates that Ms Mutch was required to revise the National Quality Standard requiring that children be supervised at all times and to “adhere to the safety of children at all times”. It is also stated that breaches will result in further disciplinary action being taken against Ms Mutch. 22 The warning indicates that following this incident, Ms Mutch was placed on a leadership and mentoring plan which included that Ms Mutch would be provided with training and close mentoring regarding the actions which lead to the warning. That plan was in evidence and indicates among other things, that Ms Mutch discussed personal issues in relation to her family and sought to step down to an Assistant position. The documentation relating to the plan also indicates that Ms Mutch was complimented for her dedication and effort, notwithstanding the warning in December 2013.23

[22] In her witness statement, Ms Mutch said that until late 2013 she enjoyed a positive working relationship with Total Childcare and got along well with children, parents and co-workers. In relation to the incident to which the written warning of 17 December 2013 related, Ms Mutch said:

“While taking the children inside one afternoon, I called all of their names and walked them inside. When I stepped inside I called of the children and found that one of the children was missing. I later found that this child had been playing outside with the trucks. Only a minute had passed between this time. When I stepped outside I found the mother was already coming in.

I apologised to the mother about the incident. Later the mother made a complaint and I received a written warning about the incident. At all times I made it clear that I took responsibility for the complaint and the incident.

Prior to this incident I had not received any written warning about any aspect of my work. I accepted the reprimand for the incident of 17 December 2013.” 24

[23] In response to the other matters raised in Ms D’s complaint, Ms Mutch said that she recalled dealing with a boy who was upset because he did not want to eat the food his mother had given him and wanted another child’s food. Ms Mutch said that she gently told the boy that he could not eat the other child’s food. Ms Mutch also said that she had never grabbed a child by the arm and had not received formal warnings in relation to either of these matters.

[24] Ms Mutch said she could not recall any discussions about the loudness of her voice, and denied that she had ever said that her culture is the reason for her loud voice. In relation to Ms White’s evidence on this point, Ms Mutch said that she remembered a discussion during which Ms White spoke to staff generally about being loud. During this discussion, Ms Mutch said that sometimes she did not realise that she is loud.

[25] In relation to Ms White’s evidence of monitoring her work prior to dismissal, Ms Mutch said that Ms White came into her room at approximately 5.30 pm on Wednesday, 15 January 2014 and stayed for one hour. Ms Mutch said that she was confused at Ms White’s presence because she only had seven children in the room. Ms White did speak with a child but according to Ms Mutch this was unnecessary as she already had the situation under control. Ms Mutch said that she dealt with two children who were arguing about a toy and did not snatch a toy from a child. Ms White did not raise any issue in relation to how Ms Mutch dealt with that situation. Ms Mutch also said that she was alone for the closing shifts on 14 and 15 January 2014.

[26] Under cross-examination Ms Mutch agreed that the warning she received on 17 December 2013 related to a very serious matter as far as Total Childcare and the Department of Children’s Services were concerned. Ms Mutch also agreed that child care is a highly regulated industry and there are a many obligations that must be adhered to.

[27] Ms Mutch accepted that at the time of commencing her employment with Total Childcare she undertook an induction process. 25 During that process Ms Mutch signed the Team Handbook and employment contract.26 Ms Mutch accepted that it was a requirement of her employment that she:

• Develop an understanding of child care regulations, centre policies and procedures and utilise those in her daily work; 27

• Provide quality care to the children in a safe, supportive, happy and healthy environment that met the individual needs of the children that promoted learning and success for the children; 28

• Use an appropriate tone of voice, being a gentle tone of voice while talking to the children; 29

• Ensure the safety of the children in her care and to give diligent regard for their supervision; 30

[28] Ms Mutch also accepted that she was liable to be instantly dismissed from her employment for proven child abuse, 31 wilful or deliberate behaviour that caused a negative impact on the business, the health of anyone associated with the business or the professionalism of the business32 and for verbal, physical or emotional abuse towards anyone.33 Ms Mutch also agreed that she was familiar with a range of documents setting out quality standards, policy and procedure that applied to the care of children.

2.3 The dismissal process

[29] On 14 January 2014, Ms Mutch attended a meeting with Ms White and Ms Jakupovic. Notes of the meeting tendered by Ms White indicate that it started at 1.20 pm. Ms White said that at the meeting she informed Ms Mutch of the complaint and that she had been instructed to conduct an investigation in consultation with the Department of Children’s Services. Ms White informed Ms Mutch that this type of incident might result in dismissal and asked Ms Mutch if she wished to respond to the complaint. Ms White’s evidence is that Ms Mutch responded by stating that she could not remember the incident and could not understand why Ms D had made the complaint as Ms Mutch considered that they were friends. 34

[30] Ms White states that during this meeting she reminded Ms Mutch of the need to use appropriate vocal tones and levels while talking to children in her care, and that this had been discussed with Ms Mutch previously. Ms White also states that she encouraged Ms Mutch to adopt a softer approach towards the children in her care. Ms White tendered notes of the meeting, said to be contemporaneous, which also record that Ms Mutch asked why it had taken a week to raise the allegation with her and stating that she could not remember such an incident because there are too many children. Ms Mutch was informed that Ms White had spoken to Ms D on Friday 10 January and had received documents about the complaint on Monday, 13 January.

[31] Notes of the meeting of 14 January 2014 taken by Ms Jakupovic were also appended to Ms White’s witness statement. Those notes indicate that Ms White told Ms Mutch about the allegation and named the child concerned and her grandmother. The notes also record that Ms Mutch said that she has a strong relationship with the child and her family and because of that relationship would have expected the grandmother to say something if she had witnessed the incident as alleged. The notes further record that Ms Mutch stated that she may have placed the child concerned on to a chair.

[32] In her witness statement 35 Ms Mutch asserts that she requested to see the complaint and who had made the complaint.36 Ms Mutch says that Ms White refused to provide this information “due to privacy reasons”.37 In cross-examination Ms Mutch conceded that Ms White did say words to the effect that a grandmother of a child had witnessed Ms Mutch push a child.38 Ms Mutch also conceded that she was advised the name of the child she was alleged to have pushed and provided with the details of the allegation.39

[33] Ms Mutch accepted in cross-examination that her response at the time of the meeting of 14 January was that she could not remember the incident. Ms Mutch also agreed that she did not directly deny that she had pushed a child. 40 In her statement in these proceedings, Ms Mutch said “I do remember that one of the children had pushed another child”.41 Ms Mutch conceded that she did not provide this response at the meeting of 14 January.42 Ms Mutch said that she was “on the spot” at the time and could not remember the incident alleged against her.

[34] Ms Mutch also states that Ms White told her that the allegations were serious and would need to be investigated. Ms Mutch further states that Ms White did not warn her that termination was a likely outcome if the allegation was substantiated. In cross-examination, Ms Mutch departed from these assertions and conceded that she left the meeting on 14 January 2014 knowing that her conduct would be investigated; her job was in jeopardy and that the matter would be reported to the Department of Child Safety.

[35] Ms White said that she subsequently conducted an investigation during which she held meetings with staff members to ascertain whether they had witnessed the incident on 8 January 2014; received any complaints about Ms Mutch; or observed any conduct by staff members in their dealings with children that had caused concern.

[36] Ms White appended statements from Ms Martin and Ms Jakupovic to her witness statement and implied that these were obtained during her investigation of the complaint made by Ms D. Ms Jakupovic’s statement is dated 10 January 2014 and asserts that she heard a “large yelling voice” coming from the senior toddler room which she recognised as Ms Mutch’s voice. Ms Jakupovic further states that she entered the room and spoke to Ms Mutch about the fact that her voice could be heard from the office foyer and that she should be conscious of this in the future.

[37] During her discussions with the mother and grandmother of the child with respect to whom the allegation was made, Ms White states that she was informed of other instances of inappropriate conduct by Ms Mutch. These were set out in the email from Ms D dated 14 January 2014. 43 Ms White states that Ms D’s daughter, the child’s mother, also conveyed some concerns regarding Ms Mutch’s conduct.44 Ms White does not give any evidence as to what these concerns were. Annexed to Ms White’s statement is an email from Ms D’s daughter, Ms U, setting out her concerns regarding Ms Mutch.45 This email is dated 3 March 2014, after Ms Mutch was dismissed from her employment and also after Ms Mutch filed her application for an unfair dismissal remedy. The email states:

“In January 2012 on the first day of term, myself and my mother [Ms D] took [my daughter] to Cedar Avenue Child Care, for her first official day in the toddler room, which was located downstairs. Before entering the room we both seen (sic) through the glass panel in the door, staff member [Ms Mutch] grab a child by the upper arm, this child appeared to be around 3 years old or less. I found this action to be very aggressive towards this child and had concerns that my child would be treated the same way. I made a complaint to the direct at the time Melissa Whinch, I had sat down and explained what I had seen and my concerns, she said she would talk to [Ms Mutch] about this and it was very out of character for her.”

[38] Ms U was not available at the hearing to give evidence or to be cross-examined. Ms White states that while she did have “regard” to Ms U’s verbal complaint, at the time of the investigation that led to Ms Mutch’s dismissal, the focus was on the incident of 8 January 2014 as set out in Ms D’s complaint. The additional allegations of misconduct also set out in Ms D’s complaint were relevant to Ms White’s consideration in demonstrating a continuing pattern of behaviour on Ms Mutch’s behalf. Ms White confirmed that these additional allegations were not put to Ms Mutch for response 46 and conceded that she could not find any record of Ms U’s complaint to the former Director of the Centre.47

[39] Ms White said that after her investigation and discussions with respect to Ms D’s complaint about Ms Mutch, she also considered Ms Mutch’s file and the prior warnings that had been issued to her. Ms White determined that her review revealed a clear pattern of unacceptable behaviour on the part of Ms Mutch that was worsening. Ms White formed the view that Ms D’s allegations had been substantiated, Ms Mutch had not refuted the allegations or sought to explain her conduct and that Ms Mutch’s conduct was sufficiently serious to warrant summary dismissal. Before making her final decision, Ms White referred the matter to Mr Robert Stevens, Business Support Manager and Mr Phillip Krenske, Business Owner, who considered the material and determined that summary dismissal was appropriate. Mr Stevens and Mr Krenske then arranged for the termination letter to be prepared and delivered to the Child Care Centre.

[40] Ms White said that on 16 January 2014, Ms Mutch telephoned her to say that she did not think that she could attend work because she felt upset about the allegations made against her. Ms White told Ms Mutch that as she was not sick, Ms White could not arrange for anyone to cover for her to make sure that necessary ratios were maintained. Ms White suggested that Ms Mutch come to work so that they could discuss the allegations and Ms Mutch agreed to do so.

[41] According to Ms White, Ms Mutch approached her on the morning of 16 January 2014 and said that she remembered something that had occurred on 8 January but could not remember physically pushing the child concerned. Ms White suggested that they meet later in the day to discuss the matter in circumstances where she had concluded her investigations. Ms Mutch agreed to attend a meeting later that day and did not request to have a support person present.

[42] There was a further meeting on 16 January 2014, between Ms White, Ms Cowie and Ms Mutch. Ms White said that at the meeting she explained to Ms Mutch that she had investigated the complaint made by Ms D and was satisfied that there was evidence of a continuing pattern of behaviour amounting to gross misconduct that placed the children in care at the Centre at risk. Ms White told Ms Mutch that in those circumstances, she had no other option but to terminate Ms Mutch’s employment. Ms White handed Ms Mutch a dismissal letter and read that letter out loud to Ms Mutch. The letter stated that Ms Mutch was dismissed “due to industry gross misconduct after an incident that occurred on 8 January 2014”. The letter further stated that the dismissal would take effect immediately and that Ms Mutch would be paid hours already worked and annual leave owing to her. 48 Ms Cowie’s evidence about the meeting was that:

“...Ms White read out the dismissal letter which explained the reasons for dismissal. She then handed the letter to the Applicant and asked her to read it.

The Applicant became upset and said that she did not really understand why she was being dismissed.

Ms White explained that there had been a number of incidents concerning her management of the children in her care, including the most recent incident, which indicated a pattern of serious misconduct.

I do not recall the Applicant’s precise response but she said words to the effect of, ‘I know you are just doing your job and I am aware that there have been some problems but I did not consider them to be so serious as to come to this’.” 49

[43] Ms Cowie states that during this meeting Ms Mutch did not deny pushing the child. 50 Ms Cowie further states that at this meeting Ms Mutch was not requested to provide an explanation of the incident51 and Ms Mutch did not independently offer to provide any explanation.52

[44] In response to questions from the Commission, Ms White agreed that by the morning of 16 January 2014 she had made up her mind that Ms Mutch had pushed a child but was awaiting a decision from her Manager as to whether Ms Mutch should be dismissed. Ms White also agreed that this was a serious matter. When asked why she had placed Ms Mutch back into a room full of children in such circumstances, Ms White said that Ms Mutch had not been alone with the children. Ms White also said:

“I just did what I had to do until I had discussed with Robert [Stevens] and finally dismissed her. I don’t know. I just put her back in there so that I could cover ratios because we didn’t have enough staff and I presumed she – I did not think that she would do it again so I put her in the room to cover her shift, to meet regulations, to meet the ratio until I had spoken to Mr Stevens.” 53

[45] Ms Mutch said that she approached Ms White on the afternoon of 15 January and told her about the incident involving Ms D’s granddaughter and the other child in relation to the book and that she thought that this is what the complaint was about. Ms White responded by saying: “that’s not the one – you shoved a child”.

[46] Ms White said that Ms Mutch approached her and said that she remembered something but did not provide further information either then or at the meeting on 16 January. Ms White denied that she cut off any explanation from Ms Mutch and maintained that Ms Mutch could have provided such an explanation at any time prior to or at the meeting of 16 January but did not do so. Ms White also maintained that Ms Mutch did not mention an incident involving Ms D’s granddaughter and another child, or Ms D’s granddaughter having pushed that other child.

[47] In relation to the events of 16 January 2014, Ms Mutch said that on that date she was feeling “extremely anxious and had trouble focusing”. 54 Ms Mutch contacted Ms White and requested the day off as sick leave stating that she was not fit for work. Ms Mutch intended to visit her psychologist and counsellor. Ms Mutch’s evidence is that Ms White stated that Ms Mutch was “not really sick” and that there was no-one available to cover her shift.

[48] Ms Mutch attended for work at 9:50am on 16 January, ten minutes before the start of her shift. On her arrival Ms Mutch went to see Ms White. Ms White directed Ms Mutch to commence work and told Ms Mutch she would speak to her later. At 1:55pm, Ms White approached Ms Mutch and requested that she come to the office for a meeting. Ms Mutch had not previously been notified that she was required to attend a meeting. Ms Mutch says that there was no-one available to act as a support person at this time. In cross-examination Ms Mutch accepted that she knew when attending work on 16 January that she would be required to attend a meeting that day. 55

[49] Ms Mutch’s evidence is that at the meeting on that date, a letter from the payroll department terminating her employment was read to her. Ms Mutch was also advised that the Department of Children’s Services had been involved and would be attending the Centre to investigate the incident. Ms Mutch said that she was informed that because of this incident and a previous incident, Total Childcare had concluded that she had “2 breaches of service” in a matter of a month and that she was terminated with immediate effect.

[50] Ms Mutch states that Ms White stated that “we will have to get this meeting over with quickly because Ms King had to go back to Rockhampton”. Ms Mutch was crying heavily through the meeting and states that she was not prepared “at all”. Ms Mutch’s evidence is that she was not given an opportunity to get advice or to speak with “our union” before attending the meeting.

2.4 Other relevant matters

[51] It was asserted in the submission on behalf of Ms Mutch that in the months leading up to and including her dismissal, management of Total Child Care knew that she had problems with anxiety and depression, for which she was seeking professional help. Ms Mutch said in her evidence that she started getting assistance from a psychologist from late 2012 after a family incident. From time to time, Ms Mutch contacted Total Child Care and obtained leave to attend an appointment with treating mental health practitioners.

[52] In cross-examination, Ms Mutch was shown a “medical self-assessment” in relation to her employment, completed by Ms Mutch and dated 14 March 2012. 56 On that self-assessment Ms Mutch indicated that she did not have any chronic illness or condition, requiring regular visits to a medical practitioner. Ms Mutch states that at the time she commenced employment with Total Childcare and completed the self-assessment she was not suffering from depression.57 Ms Mutch accepted however that she did not update the medical self-assessment during her employment.

[53] Ms Mutch maintained that she had notified Ms Melissa Wicks, a Director of Total Childcare that she was suffering from depression and requesting assistance in scheduling of lunch and other breaks to accommodate counselling. 58 Ms Mutch also maintained that she told Ms White about this issue.59

[54] Ms Sinclair, Lead Educator in the Junior Kindergarten room, gave evidence in Ms Mutch’s case. Ms Sinclair’s evidence is that on 16 January 2014 she was working in the Junior Kindergarten when she saw Ms Mutch. Ms Sinclair states that Ms Mutch was particularly quiet, which was unusual for her. At approximately 10am Ms Sinclair saw Ms Mutch again, at which time Ms Mutch broke down into tears. Ms Sinclair comforted Ms Mutch.

[55] Ms Sinclair also gives evidence that in 2011 she worked with Ms Mutch directly in one of the toddler rooms. She states that she is aware of some personal difficulties Ms Mutch has had in recent years. Ms Sinclair states that she is aware that Ms White assisted Ms Mutch by making roster changes to support Ms Mutch’s requirements for outside support. Following these accommodations, Ms Sinclair states that Ms Mutch returned to her “happy boisterous self”. From her discussions with Ms Mutch, Ms Sinclair states that she was under the impression that Ms White was aware of the reasons for Ms Mutch’s need for assistance.

[56] Ms Sinclair also gives evidence about the atmosphere at Total Childcare’s facility towards the end of 2013. Ms Sinclair states that the previously positive environment began to deteriorate at about this time making a tense environment for everyone. Ms Sinclair states that this resulted in her resigning employment in the beginning of 2014. Ms Sinclair attributes this negative change to Ms White’s appointment as Director of the Centre. 60 Ms Sinclair accepted that she had applied for and been unsuccessful in obtaining the position of Director.61

[57] Ms Sinclair accepted that if an Educator was found to have shoved a child it would be contrary to their obligations in the industry, 62 and said that she was not aware that on 16 January 2014 Ms Mutch was being investigated for shoving a child.63 Ms Sinclair was not involved in the investigation of that incident.64

[58] Ms White disputes that Ms Mutch ever discussed with her any diagnosis of anxiety or depression. In particular, Ms White does not accept that Ms Mutch, when calling her on 16 January 2014, stated that she was unfit for work. Ms White’s evidence is that Ms Mutch said that she was sad because of the allegations and didn’t think she could attend for work. 65 Ms White responded that she didn’t have staff to cover Ms Mutch’s absence.66

[59] Ms Cowie states that in early to mid-2013 when she was working with Ms Mutch, requests for Ms Cowie to approve “last-minute leave” were made by Ms Mutch. Ms Cowie states that Ms Mutch advised her that she was “experiencing considerable personal problems relating to her son and her husband which she did not wish to detail specifically”. 67 Ms Cowie considered that it was clear that Ms Mutch was very distressed at this time and approved the leave. At the Hearing, Ms Cowie clarified that Ms Mutch did not notify her that she was suffering from anxiety or depression or that she was under the care of a counsellor.68

3. RELEVANT LEGISLATION

[60] In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable the Commission must take into account those matters specified by s.387 of the Act, 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.”

[61] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 69

[62] The onus rests with the respondent to establish that the misconduct as alleged took place and it constituted a valid reason for dismissal. 70 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced”71. The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts,72 and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.73

[63] I accept that employers who provide services to vulnerable persons such as children have stringent obligations to ensure that alleged incidents of inappropriate conduct are investigated and employees who are found to have engaged in such conduct are appropriately disciplined. I also accept that such allegations must be reported to regulatory authorities and that those authorities may place constraints on employers such that they have little real option but to dismiss an employee who is found to have engaged in misconduct of this kind. However, this does not exempt employers in industries such as child care from their obligations under the provisions of the Act relating to unfair dismissal.

[64] The consequences to an employee of a finding that allegations of misconduct against children or other vulnerable persons are substantiated are catastrophic and career ending. Such findings should not be made unless they are established to the appropriate standard of proof. The standard of proof to be applied in such cases is the balance of probabilities. That is the case notwithstanding that the strength of the evidence necessary to establish misconduct to the required standard may vary, because of the seriousness of the allegations. 74 Such findings should not be lightly made, and must be based on clear and cogent proof.75

4. CONSIDERATION

4.1 Was there a valid reason for Ms Mutch’s dismissal?

[65] The case conducted for Total Childcare at the hearing in relation to the reason for Ms Mutch’s dismissal was narrower than that articulated in its Form F3 Response to the application and the outline of submissions and witness statements. The initial material contains references to what is said to be “a documented history of [Ms Mutch] being abrupt, abrasive, callous and loud with children under her care” and to numerous warnings about such conduct. It was also asserted that there were two instances of written complaints being made following Ms Mutch’s improper physical handling of children including aggressively grabbing a child by the arm and “shoving” a child in the back, and that the incident on 8 January 2015 was the fifth reported incident of Ms Mutch mistreating children under her care.

[66] The evidence placed before the Commission does not substantiate these assertions. At best it establishes that there was a complaint by a parent in December 2013 in relation to Ms Mutch leaving a child in a playground. Although this is a serious incident it is not an incident that can properly be described as improper physical handling of a child. The fact that Ms D’s complaint refers to two other incidents does not make it a complaint from parents about those two incidents that fits the description in the Form F3 Response which asserts that there were written complaints from parents about incidents in January 2012 and December 2013 and infers that the complaints were contemporaneous with the incidents. The evidence as to the assertion that the incident of 8 January was the fifth reported incident of Ms Mutch mistreating children is also gilding the lily. The effect is further enhanced by the use of the term “shoved” in the material filed by Total Childcare, when the complainant used the term “pushed”.

[67] I accept that cases conducted by parties in unfair dismissal proceedings may evolve over time, and that the focus can narrow at hearing. Employers can also rely on knowledge of misconduct on the part of the dismissed employee that was not known at the time of the dismissal, to establish that there was a valid reason for dismissal. I also accept that incidents or issues which did not of themselves form part of the reason for a dismissal may be relevant to other matters that the Commission is required to consider in deciding whether that dismissal is unfair and what, if any, remedy should be granted.

[68] However, in the present case, there was one complaint that could properly be described as relating to Ms Mutch improperly handling children. Total Childcare is not a small business. It has more than one site, a senior management structure and access to legal advice. Its conduct in attempting to turn one complaint into multiple complaints was totally unnecessary given that at the end of the day, the entire case for both parties turned on the alleged incident of 8 January 2014.

[69] Total Childcare knew or should reasonably have known well before this case was heard that its evidence did not support such an assertion. Instead, it maintained that assertion right up to the point of hearing and did not withdraw it, but rather did not press the assertion in final submissions. Similarly the proposition that the incident of 8 January 2014 was the fifth reported incident of mistreatment is not supported by the evidence. At best, this assertion is based on incidents that were not raised with Ms Mutch at the point they occurred, and which do not appear to have been reported until witness statements in connection with the hearing of her unfair dismissal application were prepared.

[70] That conduct is not excused by the seriousness of the allegation in relation to Ms Mutch’s improper treatment of a child on 8 January 2014. I am of the view that the way in which Ms Mutch and the allegation were dealt with is completely at odds with the case that Total Childcare ran wherein it was asserted that it was justifiable to summarily dismiss Ms Mutch because of the threat she posed to the children in her care.

[71] It is apparent from Ms White’s evidence and the “Defence Submissions” filed on behalf of Total Childcare, that Ms White and the management of Total Childcare took more than the incident of 8 January 2014 into account in determining to dismiss Ms Mutch. The additional incidents that were taken into account were set out in the complaint of Ms D made orally on 8 January and in writing on 13 January 2014. Those incidents were alleged to have occurred well before the incident involving Ms D’s granddaughter. The only corroboration for those allegations came from Ms D’s daughter, Ms U, who did not provide a statement to Total Childcare until after Ms Mutch was dismissed. Total Childcare has no record of a complaint about this incident being made at the time.

[72] The submission about a pattern of behaviour and warnings also relies on a number of incidents which are alleged to have occurred in the period between 8 January 2014 and Ms Mutch’s dismissal on 16 January 2014, while the investigation into Ms D’s complaint was being undertaken. Ms White’s evidence about Ms Mutch’s conduct in the period between 8 January and her dismissal on 16 January is highly improbable.

[73] Ms White was sketchy about the dates of alleged incidents in the period between 8 and 16 January 2014 and in the absence of evidence to the contrary, I accept Ms Mutch’s evidence that Ms White came into her room on one occasion during that period – at 5.30 pm on 13 January 2014. The proposition that on that date, Ms White – with knowledge of Ms D’s complaint about Ms Mutch’s conduct on 8 January – would do nothing about Ms Mutch snatching a toy from a child is nonsensical. If Ms White did not raise the matter with Ms Mutch at that time, I can only wonder at why she felt the need to refer to it in her witness statement and to rely on it as part of the reason for the decision to dismiss Ms Mutch.

[74] If, in addition to snatching the toy, Ms Mutch continued to speak in a loud and inappropriate manner to small children in that period, it beggars belief that Ms White would have allowed her to remain in a room in charge of small children for the next two days before summarily dismissing her for serious misconduct involving inappropriate conduct towards a child over a week earlier.

[75] The assertion that Ms White took no action in the period between when 8 and 16 January because she was still investigating the complaint made by Ms D is also unconvincing and entirely at odds with the decision to summarily dismiss Ms Mutch. Quite simply, Ms White chose to leave Ms Mutch in her position in the Toddlers Room because the need to maintain ratios of staff to children outweighed the risk of Ms Mutch behaving inappropriately towards a child. Ms White said as much in her evidence to the Commission.

[76] Ms White, and senior management of Total Childcare, behaved in a manner that is completely inconsistent with the assertions to the Commission that Ms Mutch was a serial offender in her aggressive and inappropriate dealings with children and that they had no option but to dismiss Ms Mutch for that conduct. The only relevant history that Ms Mutch had was a warning in relation to leaving a child in the playground in December 2013. While this was inappropriate conduct it was careless or negligent rather than aggressive.

[77] The real issue – which was pursued in the final submissions on behalf of Total Childcare – was whether, on 8 January 2014, Ms Mutch pushed a child as alleged by Ms D. It is not in dispute that such conduct would constitute a valid reason for dismissal. The way that the case for Total Childcare was framed from the outset did not assist with the determination of this point. Total Childcare attempted to shore up the one valid reason it could properly have relied on for dismissing Ms Mutch with a series of other allegations that had little or no substance. It was also the case that Ms White appeared to have formed a view that Ms Mutch yelled at Ms D’s granddaughter in addition to shoving her.

[78] Notwithstanding my concerns about the manner in which Total Childcare articulated and conducted its case, the allegation that Ms Mutch pushed a child is a serious one. On balance, I am satisfied that Ms Mutch did behave in an inappropriate manner towards Ms D’s granddaughter and that Ms Mutch did push the child in a way that caused concern to her grandmother, Ms D, who witnessed the incident.

[79] I have reached this conclusion for the following reasons. Ms D did not resile from her evidence that she saw Ms Mutch push her granddaughter and that the child was distressed and crying as a result. There was no evidence that Ms D had an ulterior motive in making that allegation or that she did so dishonestly. I found Ms D to be a credible witness and I accept her evidence.

[80] Ms Martin, who overheard part of the conversation between Ms D and Ms Pitman Suttie, during which Ms D reported the incident, confirmed that Ms D appeared to be unhappy and concerned. Ms Martin also observed that Ms Mutch was behaving as though she was stressed and later saw Ms Mutch in a bathroom with her hands on her head.

[81] Further, Ms Mutch’s denial of the allegation was not convincing. Ms Mutch stated that she could not remember pushing a child and said that if she had done so another staff member would have seen it. I also accept that Ms Mutch did not provide the explanation about the incident between Ms D’s granddaughter and another child in relation to a book, until she provided a statement in response in these proceedings, reducing the likelihood that this is in fact what occurred.

[82] Even making allowances for the fact that giving evidence in the Commission is stressful, during her evidence Ms Mutch displayed aggression and gave answers which were self-serving and not responsive to questions. It is also the case that Ms Mutch was not a credible witness. Ms Mutch made a number of statements in her evidence in chief which were shown in cross-examination to be incorrect. An example of this is her assertion that she was not told the name of the child involved in the incident for privacy reasons. In cross-examination Ms Mutch made a number of statements which indicated that she knew the identity of the child and her grandmother and was forced to concede that her evidence on this point was wrong. Accordingly, I am satisfied that there was a valid reason for the dismissal of Ms Mutch.

4.2 Was Ms Mutch notified of the reason for her dismissal?

[83] I am not satisfied that Ms Mutch was notified of the reason for her dismissal. The reason for Ms Mutch’s dismissal was what Ms White described as a continuing pattern of aggressive behaviour towards children on the part of Ms Mutch that was worsening. Ms Cowie documents in her notes of the dismissal meeting that Ms White told Ms Mutch that there had been a number of incidents concerning her management of children in her care which indicated a pattern of serious misconduct. While I accept that Ms Mutch was notified of one of these incidents – that on 8 January 2014 she had been found to have pushed a child – the reason for her dismissal included other incidents.

[84] I do not accept that the other incidents considered by Ms White as forming a pattern of behaviour was limited to the incident about which Ms Mutch was warned in December 2013 and the 8 January 2014 incident. The other incidents were those alleged by Ms D and those observed by Ms White and other staff of Total Childcare in the days following 8 January 2014.Ms Mutch was not notified of these matters and accordingly was not notified of the reason for her dismissal.

4.3 Was Ms Mutch given an opportunity to respond to the reason for her dismissal?

[85] I do not accept that Ms Mutch was given an opportunity to respond to the reasons for her dismissal. It is axiomatic that if Ms Mutch was not properly notified of the reason for her dismissal, then she did not have an opportunity to respond to that reason. Neither of the meetings on 14 or 16 January 2014 provided Ms Mutch with an opportunity to respond to the reason for her dismissal.

[86] The meeting on 14 January 2014 occurred at a point when Ms White was still investigating the allegation that had been made by Ms D and had not yet received that allegation in writing as requested. The purpose of the meeting was to inform Ms Mutch of the allegation about her conduct on 8 January and Ms Mutch was told at that meeting that she would have an opportunity to respond to the allegation. As previously stated, the totality of the allegations were not put to Ms Mutch and Ms Mutch’s conduct after that meeting was relied on as part of the reason for dismissal without advice to her and in the absence of an opportunity to respond to these matters.

[87] It is also the case that after the meeting on 14 January, Ms Mutch approached Ms White and told her that she remembered something relevant to the allegation about her conduct on 8 January 2014. Whether or not Ms White cut Ms Mutch off, there is no evidence that Ms White asked Ms Mutch at any later point, to tell her what she had remembered. The assertion that Ms Mutch could have approached Ms White at any time to provide her explanation, is not sufficient to meet the requirements of s. 387(c). What was required was that Ms Mutch be given an opportunity to provide whatever explanation or response she wished to provide. Ms Mutch should have been invited to provide that explanation at the meeting of 16 January 2014, or at least had some opportunity to do so.

[88] The meeting on 16 January did not provide such an opportunity. Essentially it was a fait accompli. The conclusion that Ms Mutch was guilty of misconduct and that Ms D’s allegations were substantiated had already been reached and a letter of dismissal had been written, ready to give to Ms Mutch at the meeting. While that is not of itself fatal to a finding that there was an opportunity for Ms Mutch to respond to the allegations and avoid dismissal, there is no evidence of any such opportunity being given to Ms Mutch at that meeting.

[89] Ms White did not request Ms Mutch to respond to the allegations or otherwise prompt Ms Mutch to provide the explanation she had attempted to give earlier in response to the allegations against her. Ms White simply read the termination letter to Ms Mutch and told her that there were a number of incidents concerning her management of children, which indicated a pattern of serious misconduct. As previously noted, in reaching the decision to dismiss, Ms White relied on matters that were not put to Ms Mutch and with respect to which she had no opportunity to respond.

4.4 Was there an unreasonable refusal by Total Childcare to allow Ms Mutch to have a support person present to assist at any discussions relating to the dismissal?

[90] Total Childcare argued that Ms Mutch did not request a support person at the meeting of 14 January or 16 January. Ms Mutch concedes that she did not ask for a support person, but submitted that Total Childcare had caught her by surprise by giving her no notice before the meeting.

[91] In the present case, there was no refusal, unreasonable or otherwise, for Ms Mutch to have a support person present. However, I accept that Ms Mutch was effectively denied a support person because of the way in which the meeting was conducted and this is a matter that I have taken into account as part of the consideration of whether Ms Mutch had a reasonable opportunity to respond to the allegation and under the heading of “other relevant matters” in s.387(h).

4.5 If the dismissal related to unsatisfactory performance—whether Ms Mutch had been warned about that unsatisfactory performance before the dismissal?

[92] Ms Mutch had previously been warned about her performance. However, the warning related to Ms Mutch being careless or negligent in leaving a child outside in the playground, rather than the kinds of allegations raised by Ms D and the incidents observed by Ms White and other staff. I accept that Ms White, Ms Jakupovic and others had raised concerns with Ms Mutch about the loudness of her voice when she spoke to children in her care. However, I do not accept that Ms Mutch had been warned about these matters.

[93] It is also the case that the warning in December 2013 was not a final warning in that it did not indicate that any future breach of policy or procedure or any inappropriate conduct by Ms Mutch would result in the termination of her employment. The documented mentoring program in fact indicates that Ms Mutch responded positively and was endeavouring to improve her performance.

4.6 Did the size of Total Childcare’s enterprise and the absence of dedicated human resource management specialists or expertise impact on the procedures followed in effecting the dismissal?

[94] There is no evidence that the size of the enterprise impacted on the procedures followed by Total Childcare in effecting the dismissal. The Company is not a small business. Total Childcare was legally represented in these proceedings and could have accessed legal assistance at an earlier point. Ms White also had access to more senior managers as a source of advice and to a payroll department which drafted the termination letter that was given to Ms Mutch.

4.7 Any other matters that the FWC considers relevant

[95] There are a number of matters that I consider to be relevant to the question of whether Ms Mutch’s dismissal was unfair. I am of the view that it is improbable that Ms White and other managers of Total Childcare did not know that Ms Mutch was seeking medical treatment in the period prior to her dismissal. Ms Mutch gave evidence which was not contested, to the effect that she had sought and been given time off to attend appointments with her counsellor.

[96] Even if it was not known that Ms Mutch was seeing a counsellor, Ms Cowie knew that Ms Mutch was experiencing considerable personal problems with her husband and son for which she sought leave at the last minute. Ms Cowie also said that Ms Mutch was very distressed at this time. It is also the case that during the mentoring discussions Ms Mutch revealed that she had family related issues and wanted to step down to a lower level role.

[97] Given that Ms Mutch was allowed to continue to work after serious allegations were made against her by Ms D, and that the reason for this was said to be a shortage of staff necessary to maintain child care ratios, it is unlikely that Ms Mutch needing to take leave at the last minute to attend to personal problems would have gone unnoticed

[98] It is also the case that on 16 January 2014, when Ms Mutch was dismissed, she told Ms White that she did not feel able to attend work. Ms White insisted that she attend, principally for the reason that she was short staffed and could not cover Ms Mutch’s shift. There was no evidence of consideration being given to whether Ms Mutch was in a fit state to work or to attend a termination meeting on 16 January 2014.

[99] Further, the decision to dismiss Ms Mutch summarily for serious misconduct, without payment in lieu of notice, is at odds with Ms White letting Ms Mutch continue to work with children between 8 January and 16 January 2014, with little or no supervision. Ms Mutch was allowed to continue working with children, notwithstanding that on Ms White’s evidence, she continued to display the conduct which led to her dismissal including talking to children in a loud and aggressive tone and snatching a toy from a child.

5. CONCLUSION IN RELATION TO WHETHER THE DISMISSAL WAS UNFAIR

[100] On balance, notwithstanding that there was a valid reason for Ms Mutch’s dismissal in that I am satisfied that she behaved inappropriately to a child on 8 January 2014, I am also satisfied that Ms Mutch’s dismissal was unfair, on the grounds that the decision to dismiss her summarily was harsh because of its consequences for Ms Mutch and unreasonable because the conclusion that she had engaged in a pattern of conduct was decided on inferences that could not have reasonably been drawn from the material before the employer.

6. REMEDY

[101] Given that I have found that Ms Mutch’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Ms Mutch was protected from unfair dismissal and that she has been unfairly dismissed. I am also of the view that Ms Mutch should have a remedy for her unfair dismissal. Ms Mutch seeks compensation.

[102] I am satisfied that an order for the payment of compensation is appropriate in all of the circumstances of the case. Section 392 of the Act provides as follows in relation to the remedy of compensation:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[103] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket 76. In accordance with that approach, and s.392 of the Act, I calculate compensation as follows.

[104] There is no evidence that an award of compensation will affect the viability of the business of Total Childcare. Ms Mutch had a period of service of two years and ten months with Total Childcare. I am of the view that Ms Mutch would not have remained in employment for any length of time. The dismissal was unfair on procedural grounds. Had Ms Mutch been given a proper opportunity to respond to the allegations against her in their totality, I doubt that she could have given a reasonable response.

[105] Even at the hearing of her unfair dismissal application, Ms Mutch was unable to provide a reasonable response or explanation to rebut the evidence of Ms D that on 8 January 2014 she pushed a child under her care and on balance I am satisfied that this allegation was made out. Had the allegations been properly put to Ms Mutch and had she been given a proper opportunity to respond to them, her employment would, in my view, have continued for no more than a four week period.

[106] Ms Mutch has made reasonable attempts to secure alternative employment and obtained a casual position in March 2014 which she continues to hold. Ms Mutch earns $380 per week from her casual employment. Given my finding about the likely period that Ms Mutch would have remained in employment, and the fact that she did not commence her new employment until after that period, I make no deduction on account of her earnings from that new employment. I also make no deduction for misconduct, given that the amount of compensation I have ordered covers only the period that Ms Mutch would likely have remained in employment.

[107] I award compensation to Ms Mutch for her unfair dismissal in the amount of four weeks wages based on her ordinary working week of 37 hours. At the time of her dismissal, Ms Mutch earned approximately $700 per week during her employment with Total Childcare. 77 I award compensation to Ms Mutch in the amount of $2,800.00, to be taxed accordingly to law. An Order to that effect will issue concurrently with this Decision.

DEPUTY PRESIDENT

1 Exhibit 1 and Exhibit 2.

2 Exhibit 17 and Exhibit 18.

3 PN26 and PN44.

4 Exhibit 19 and Exhibit 20.

5 Exhibit 26.

6 The email setting out Ms D’s complaint is Exhibit 22. I have ordered that the name of Ms D not be published to protect the identity of her grandchild to whom her complaint about Ms Mutch related.

7 Exhibit 27.

8 Exhibit 28.

9 Exhibit 25.

10 Exhibit 27.

11 PN1105.

12 PN1114 to PN1116.

13 PN1108 to PN1109.

14 PN1124.

15 PN1138.

16 Exhibit 1.

17 Exhibit 1 at paragraphs 11 to 12.

18 Exhibit 2 at paragraph 11.

19 Exhibit 19 at paragraph 12.

20 Exhibit 19 at paragraphs 19 to 21.

21 Exhibit 26 at paragraph 6.

22 Exhibit 13.

23 Exhibit 12.

24 Exhibit 1 Statement of Jeanette Mutch dated 16 June 2104 paragraphs 7 – 9.

25 PN95.

26 PN96 and Exhibit 3.

27 PN107.

28 PN108.

29 PN109.

30 PN110.

31 PN115.

32 PN116 to PN118.

33 PN119 to PN120.

34 Exhibit 19 at paragraph 15.

35 Exhibit 1.

36 Exhibit 1 at paragraph 10.

37 Exhibit 1 at paragraph 10.

38 PN315.

39 PN316 and PN413.

40 PN324; PN391.

41 Exhibit 1 at paragraph 11.

42 PN338 to PN339; PN393.

43 Exhibit 22.

44 Exhibit 20 at paragraph 9.

45 Exhibit 20 at Annexure JW2.

46 PN743.

47 PN871; PN878.

48 Annexure to Supplementary Witness Statement of Jennifer Ann White Exhibit 20.

49 Exhibit 28 at paragraphs 12 to 15.

50 PN29.

51 PN59 to PN60.

52 PN65.

53 PN958.

54 Exhibit 1 at paragraph 18.

55 PN426.

56 Exhibit 15.

57 PN279.

58 PN272.

59 PN284 to PN286.

60 PN552.

61 PN553.

62 PN537.

63 PN545.

64 PN546.

65 PN749.

66 PN750.

67 Exhibit 28 at paragraph 6.

68 PN21.

69 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

70 Culpeper v Intercontinental Ship Management Pty Ltd[2004] AIRC 261.

71 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

72 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

73 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

74 Brinks Australia Pty Ltd v Transport Workers’ Union of Australia PR922612 per Giudice J, Acton SDP and Hingley C at [7].

75 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449 at 449-450.

76 (1998) 88 IR 21.

77 Exhibit 1 at paragraph 1.

Printed by authority of the Commonwealth Government Printer

Mrs Jeanette Mutch v Total Childcare Solutions Australia T/A Cedar Avenue Early Learning

[2015] FWC 4541

18 AUGUST 2015

DECISION

3. RELEVANT LEGISLATION

4. CONSIDERATION