Mrs Nelli Berberian v Tiny Scholars

[2013] FWC 5376

[2013] FWC 5376

FAIR WORK COMMISSION

DECISION

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

Mrs Nelli Berberian
v
Tiny Scholars
(U2013/5997)

COMMISSIONER CAMBRIDGE SYDNEY, 6 AUGUST 2013

Unfair dismissal - Small Business Fair Dismissal Code - summary dismissal - belief held by employer - belief based on reasonable grounds - belief that conduct sufficiently serious to justify immediate dismissal - code applied and dismissal deemed fair - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was recorded as being lodged at Melbourne on 31 January 2013. The application was made by Nelli Berberian(the applicant) and the respondent employer is Tiny Scholars Childcare and Preschool (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 10 January 2013. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Sydney on 3 June, 2 and 4 July 2013.

[4] At the Hearing, Mr D Nagle, a barrister, appeared for the applicant. The applicant was the only witness called to provide evidence in support of the claim. The employer was represented by Mr B D Eurell, a barrister, who called a total of six witnesses who provided evidence on behalf of the employer.

Factual Background

[5] Since March 2007, the applicant worked as a certified supervisor in Early Childhood Education at the Tiny Scholars Childcare and Preschool (the preschool) located in the Sydney suburb of Ermington. In June 2012, the applicant took a period of annual leave and travelled to the country of her birth, Armenia. When the applicant returned from annual leave in late August of 2012, the preschool had a new proprietor. The employment of the applicant transferred from the previous owners of the preschool to the employer.

[6] The employer is a small business employing approximately 3 people. The employer operates the preschool under a partnership between Mr Michael Moussa, his parents, and his wife Ms Mai Iskander.

[7] In September 2012, the employer advised the applicant and other employees, that the relevant government authority was to conduct a National Quality Assessment (NQA) at the preschool on 25 October 2012. The applicant and other employees were required to make extensive preparations for the NQA. There was a significant level of concern about the preschool achieving a satisfactory result from the NQA. Given the applicant’s supervisory role, great emphasis on the success or otherwise of the NQA caused her understandable stress and anxiety.

[8] On 16 October 2012, a parent of one of the children who attended the preschool made a complaint to the employer (the first complaint). This complaint developed from the child telling her mother that the applicant had hit her when she was at the preschool. The employer arranged a meeting with the child’s mother to discuss the details of the child’s remarks. The meeting included a documentary record of the child’s allegation which was described as the “violently disciplining” of the child by the applicant.

[9] On the next day, 17 October, the employer was told by one of its employees that earlier that day the applicant had slapped a child on the buttocks. The slapping of the child was alleged to have occurred in the toilets of the preschool and arose in connection with toilet training of the child. The child involved was a different child to the individual whose mother had made the first complaint the previous day.

[10] On the following day, 18 October, the employer conducted a meeting with all staff which included inquiry about any staff member physically disciplining children. No staff member admitted to physically disciplining children. During this meeting there was also discussion about the installation of closed circuit television cameras at the preschool and some reaction from the applicant seeking information from the employer about the source of any allegation of physical disciplining of children.

[11] The employer conducted further investigation into the allegation that the applicant slapped a child on the buttocks on 17 October (the 17 October incident). The employer conducted a meeting on 22 October which included those individuals other than the applicant, who were present in the vicinity of the toilets at or shortly after the 17 October incident. The employer made a documentary record of the comments made by the various individuals about the 17 October incident.

[12] On 23 October 2012, the employer received a further (third) complaint from the mother of a different child which involved an allegation that the applicant had used physical discipline on her child. Once again the employer interviewed the mother of the child and made a documentary record of the nature of the allegation which had emanated in this instance, like the first complaint, from the child.

[13] The NQA was conducted at the preschool on 25 October 2012.

[14] In the following days (circa the week commencing 29 October), the employer’s Managing Partner, Michael Moussa, conducted individual interviews with various staff members including the applicant. These individual meetings included inquiry about the allegations regarding the first and third complaints and the 17 October incident.

[15] On 2 November 2012, Mr Moussa met with the applicant and raised concern about her formal qualifications. In particular, the employer raised the issue of whether the applicant’s University qualifications gained in Armenia were recognised for the Australian Early Childhood Teacher qualification. Mr Moussa advised the applicant that unless he was satisfied that the applicant’s external qualifications were appropriately recognised in the Australian system he would reduce her wage rate.

[16] Over the following few days there was a terse email exchange between Michael Moussa and the applicant regarding her qualifications, period of probation, wage rate and other employment related matters. The applicant’s wage rate was reduced and on 9 November she commenced a period of absence from work on account of work related stress which was verified by the provision of medical certificates.

[17] The applicant was cleared to return to work on 26 November 2012 under certain conditions specified by her treating Neurologist. The applicant attended a meeting held at the preschool on 26 November. During this meeting the employer refused to permit the applicant to return to work in the absence of particular clarifications of the return to work conditions. In the course of this meeting the employer also raised allegations of “violence” towards children and the applicant denied that she had hit a (unidentified) child.

[18] The applicant was visibly upset and when she left the meeting she had a chance encounter with the mother of the child who was the subject of the 17 October incident. The applicant asked the child’s mother if she had made a complaint about her. The mother denied making any complaint or having knowledge of any concern about the applicant’s conduct. The mother’s denials would have been understandable and legitimate given that the employer had not raised the 17 October incident with the parents of the child who was the subject of the allegation raised by other staff. Later that evening the applicant telephoned other parents of children who attended the preschool and she inquired of them as to whether they had made any complaint about her.

[19] On 4 December 2012, the employer wrote to the applicant and required her to attend a meeting on 24 December to respond in particular, to allegations “regarding physical disciplinary actions”. The applicant requested and was granted a postponement of the meeting and it was re-scheduled for 10 January 2013.

[20] On 9 January 2013, the applicant sent the employer a letter written by the applicant’s treating Psychologist, which advised that the applicant was not fit to attend the meeting which had been planned for the following day.

[21] The employer considered the letter from the applicant’s Psychologist and on the following day, 10 January 2013, advised the applicant that she was summarily dismissed from employment for reason of serious misconduct. The applicant was sent a letter via email which advised of the summary termination of her employment and relevantly stated that the employer had concluded that the misconduct of the applicant involved “physically reprimanded children during your employment”.

The Case for the Applicant

[22] Mr Nagle, who appeared for the applicant, made verbal submissions in addition to documentary material which had been filed earlier. Mr Nagle submitted that there were two fundamental issues which required determination.

[23] Mr Nagle said that the Small Business Fair Dismissal Code (the Code) applied and therefore the first issue for consideration involved a threshold question about what he described as the reasonable belief of the employer. According to Mr Nagle, the Commission should not find that the employer held a reasonable belief in respect of the applicant’s misconduct and therefore the Code had not been complied with. The absence of a finding of reasonable belief would then open the matter to the second issue for determination involving a more general assessment as to the unfairness of the dismissal.

[24] Mr Nagle conceded that if the threshold question of the reasonable belief of the employer was established in accordance with the Code, then the matter could not proceed further to the subsequent considerations of a more general nature.

[25] Mr Nagle referred the Commission to various Decisions which had been made in cases which dealt with application of the Code. Mr Nagle referred in particular to the Full Bench Decision in John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359 (Pinawin) 1. Mr Nagle submitted that the Commission was required to make a finding that the employer believed that the employee’s conduct was sufficiently serious to justify immediate dismissal and that that belief was based on reasonable grounds.

[26] According to the submissions made by Mr Nagle, there was a requirement for the Commission to analyse the investigation undertaken by the employer in order to determine whether the belief of the employer was established upon reasonable grounds. Mr Nagle said that the investigation undertaken by the employer was not a reasonable investigation and therefore the subsequent belief should be held to have been established on other than reasonable grounds.

[27] Mr Nagle referred to various aspects of the investigation which had been undertaken predominantly by Mr Moussa, which he said were reflective of significant defect and general inadequacy. Mr Nagle mentioned that the investigation was based on a number of untested hearsay allegations. Mr Nagle stressed that there was no direct evidence from any witness of any physical contact between the applicant and any children. In particular, the 17 October incident was reported by another employee, Ms Naira Oganesian, who did not actually see the alleged slap but claimed that she had heard it.

[28] Mr Nagle further stressed that the inadequacy of the employer's investigation was reflected by the failure of the employer to check the attendance records on the day of one of the alleged incidents relevant to the first complaint. The evidence has subsequently revealed that the applicant was not at work at the preschool on a particular day when a child alleged that the applicant had administered some physical discipline.

[29] Mr Nagle made further submissions which criticised particular aspects of the employer's investigation. Mr Nagle criticised that Mr Moussa had not spoken to the parents about the various allegations that arose nor had he reported the matter to the police or other relevant authorities. Further, Mr Nagle was highly critical of the delay that occurred between the surfacing of the allegations and the determination that the employer made to dismiss the applicant. Mr Nagle submitted that the delay of about three months between the allegations arising in October and the subsequent dismissal of the applicant on 10 January, reflected that the employer did not treat the investigation with an appropriate level of seriousness.

[30] Mr Nagle also criticised the failure of the employer to clearly advise the applicant of the detail of the allegations. He said that the employer had only made generalised allegations regarding the alleged physical contact with children and the absence of any specifics represented a major defect in the investigation undertaken by Mr Moussa. Mr Nagle submitted that Mr Moussa realised that it was important to put the allegations in specific terms to the applicant. However, ultimately as he determined to dismiss the applicant without conducting the scheduled meetings, there was an absence of opportunity for the applicant to respond to specific allegations.

[31] Mr Nagle submitted that the employer's investigation was fundamentally flawed and he said that this meant that the subsequent belief of the employer cannot be held to have been a reasonable belief. Therefore according to the submissions of Mr Nagle, the employer had not complied with the Code.

[32] Mr Nagle made further submissions which urged the Commission to consider the broad substantive and procedural aspects of the applicant's dismissal. In this regard, Mr Nagle submitted that the evidence did not support any factual findings regarding the allegations that had been made against the applicant. In particular, Mr Nagle submitted that there was insufficient evidence to make a factual finding that the applicant had slapped the child on the buttocks, as was alleged in regard to the most serious of the allegations, that being the 17 October incident.

[33] Mr Nagle also made additional submissions regarding the employer's approach to dealing with the allegations which had been raised against the applicant. Mr Nagle once again was critical of the employer's failure to notify the police or the appropriate government regulator about matters which involved serious allegations of physical contact with children. Mr Nagle submitted that given the seriousness of the allegations the requisite standard of proof as would apply from the “Briginshaw standard” could not be satisfied.

[34] Mr Nagle summarised his submissions by concluding that the summary dismissal of the applicant could not be found to have been consistent with the Code and that upon further analysis and application of the requisite level of proof, there could be no finding to support the purported reason for the dismissal. Further, Mr Nagle said that the procedure that the employer had adopted in respect to its investigation and ultimate findings was severely flawed. Therefore Mr Nagle submitted that the dismissal of the applicant was unfair and that a remedy of monetary compensation should be provided to the applicant.

The Case for the Employer

[35] The employer was represented by Mr Eurell who commenced his submissions by stating that the dismissal of the applicant was not unfair. Mr Eurell made submissions which elaborated upon documentary material which had been filed on behalf of the employer.

[36] Mr Eurell made submissions which dealt with the operation of the Code and he also referred to the Decision in Pinawin. In this regard, Mr Eurell submitted that the evidence had established that Mr Moussa held the belief as was stated in the letter of dismissal, that the applicant had repeatedly physically reprimanded children during her employment. Further, Mr Eurell submitted that this belief involved conduct which was sufficiently serious to warrant summary dismissal. Further, according to the submissions of Mr Eurell, there was sufficient evidence, adopting the “Briginshaw standard,” to satisfy a finding that at the very least, the 17 October incident could be made out.

[37] Mr Eurell stressed that the requirements of the Code had been met by the employer. In this regard he said that there was ample authority including, in particular, the Decision in Pinawin, which established that it was not necessary for the Commission to determine whether or not the belief of the employer was correct or otherwise. Instead, it was sufficient for the Commission to find that it was a belief which had been established upon reasonable grounds.

[38] Mr Eurell submitted that the nature of the conduct which involved the physical reprimanding of children was conduct which was sufficiently serious enough to justify immediate dismissal. Further, Mr Eurell submitted that the basis upon which Mr Moussa obtained this belief was reasonable. Mr Eurell said that Mr Moussa had involved the applicant in discussions regarding the alleged misconduct and the applicant had bluntly denied any involvement in that conduct. Mr Eurell drew the Commission's attention to evidence provided by the applicant which established that she was aware of the allegations that she had described as including hitting two Armenian children.

[39] It was also submitted by Mr Eurell that the correct test was not whether Mr Moussa had undertaken a flawless investigation as one might expect from a trained professional, but instead, simply whether or not he had made sufficient and reasonable inquiries upon which to establish his belief.

[40] Mr Eurell rejected criticism of particular aspects of the employer's investigation. He said that the delay between first knowledge of the allegations and dismissal should not trouble the commission and that it was clear that Mr Moussa had been preoccupied with making sure that he spoke with persons who he thought could assist in the investigation. In addition, Mr Eurell submitted that the applicant was aware of the allegations and she had made blunt denials.

[41] Mr Eurell made further submissions which concentrated upon the evidence in respect to the 17 October incident. Mr Eurell acknowledged that there was no visual observation that the child had been struck. However, the presence of the red mark on the child's buttocks was not put in dispute at any point during the employer's investigation or subsequently.

[42] Further, in respect to the 17 October incident, Mr Eurell was highly critical of the applicant's evidence which suggested that she was not in the bathroom of the preschool on that day. According to the submissions of Mr Eurell, in order to support the applicant's assertion that she was absent from the bathroom, she attempted to tell the Commission that the bathroom was too small for two people to stand in at the one time. Mr Eurell said this was clearly not the case and that the applicant had endeavoured to provide evidence which represented deflection and evasion and this was something that reflected poorly upon her evidence generally.

[43] Mr Eurell made further submissions which rejected any suggestion that the allegations made against the applicant were in any way false or fabricated. According to the submissions of Mr Eurell, the employer had taken reasonable steps to investigate these allegations and Mr Moussa established a reliable basis for concluding that the applicant had struck children and this represented serious misconduct justifying immediate dismissal. In addition, the applicant's conduct by making phone calls to parents trying to find out who was making the allegations also represented serious misconduct because it created an imminent risk to the reputation, viability or profitability of the employer's business.

[44] Consequently, Mr Eurell submitted that the evidence established that Mr Moussa had a sound basis for his belief that the applicant had committed serious misconduct which justified immediate dismissal. Therefore Mr Eurell submitted that the dismissal of the applicant was consistent with the Code. Further, Mr Eurell said that applying the requisite standard of proof, there was sufficient evidence upon which to confirm the basis for the dismissal of the applicant. According to the submissions of Mr Eurell, the applicant's case had not been made out and there was no basis for any conclusion other than the dismissal of the applicant being justified in the circumstances and therefore not unfair.

Consideration

[45] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

[46] In this instance there was no dispute that the applicant had been dismissed and that the dismissal was not a case of genuine redundancy. Consequently, only the provisions of subsections (b) and (c) of section 385 of the Act have any relevance. The employer is a small business and the provisions of subsection 385 (c) of the Act require consideration. Specifically, it is necessary to determine whether the dismissal of the applicant was or was not consistent with the Small Business Fair Dismissal Code (referred to as “the Code”). Logically a determination of any application of the Code should precede any more general contemplation of whether the dismissal was harsh, unjust or unreasonable.

[47] The Code is in the following terms:

“Small Business Fair Dismissal Code

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.”

[48] In this case the applicant was summarily dismissed for reason of serious misconduct and that part of the Code relating to summary dismissal has required examination and application to the particular circumstances surrounding the dismissal of the applicant. The first sentence of the Code is particularly relevant and is repeated: “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.”

[49] It seems to me that there are three primary operative components contained in this sentence, which if in combination are satisfied, have the effect of rendering any summary dismissal to be fair. The first component involves the existence of a belief on the part of the employer. The second component requires that the belief of the employer was made on reasonable grounds. The third component requires that the employer’s belief be that the conduct was sufficiently serious to justify immediate dismissal.

Existence of Belief

[50] The first component, the existence of a belief, represents a conscious acceptance on the part of the employer of a fact to be true. In most instances it would be unlikely that there would be great contest about the existence of the belief in the mind of the employer. Unless there was evidence to suggest that there was some reason for dismissal other than that stated by the employer, it would seem that the existence of the belief would usually be easily established.

[51] The letter of dismissal which the employer provided to the applicant relevantly described the misconduct of the applicant as “... physically reprimanded children during your employment and that you have breached confidentiality obligations.” The question of the applicant breaching any confidentiality obligations appeared to become a second-order matter at best. The focus for the basis of the dismissal of the applicant involved the misconduct that the employer described as physically reprimanding children.

[52] Consequently, the letter of dismissal indicated that the employer, or more particularly Mr Moussa, held the belief that the applicant had physically reprimanded children. Although at an early stage of the Hearing there was some suggestion that the reason for dismissal was a fabricated invention, there ultimately appeared to be acceptance that Mr Moussa did genuinely believe that the applicant had physically reprimanded children. In any case, the evidence provides a compelling basis for a finding that the employer did genuinely and honestly hold the belief that the applicant had physically reprimanded children.

Belief Made on Reasonable Grounds

[53] The second component identified in the first sentence of the Code is that aspect involving whether the belief of the employer was made on reasonable grounds. This particular component of the Code is an issue which generally gives rise to significant contest and argument and has occupied the substantial amount of consideration in the various decided cases which were referred to by both parties.

[54] Importantly, the Full Bench Decision in Pinawin articulated that there was a distinction to be made between the application of the Code and a determination of whether summary dismissal was warranted. The Full Bench at [29], endorsed the “approach and observations” made in two other Decisions, one of Bartel DP in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café  2and the other of McCarthy DP in Harley v Rosecrest Asset Pty Ltd T/A Can Do International 3.

[55] I am of course obliged to follow the authority established by the Full Bench determination made in Pinawin. Consequently, the approach to assessment as to whether the employer’s belief was established on reasonable grounds does not involve a requirement to be satisfied that the employer had properly established grounds to justify summary dismissal.

[56] It seems to me that the Code, as interpreted by the authority established in Pinawin, provides small business employers with significantly less stringent requirements in respect to the basis and procedure upon which to implement a summary dismissal than would otherwise apply. In Pinawin the Full Bench stated: “It is not necessary to determine whether the employer was correct in the belief that it held.” 4 The corollary of these less stringent requirements leads to the prospect that a small business employer could have arrived at an incorrect belief, but if it held that belief on reasonable grounds the decision to dismiss would be consistent with the Code and rendered to be fair.

[57] Consequently, the approach to any consideration as to whether the belief of the employer was established on reasonable grounds must be recognised to be significantly different to the assessment that the Commission might ordinarily undertake as to whether a dismissal was unreasonable.

[58] There appears to be some broad acceptance that in order to hold a belief on reasonable grounds some inquiry or investigation would need to have been conducted as a pre-requisite to the formation of the belief in the mind of the employer. Further, it would seem that the nature and extent of any investigation or inquiry would not necessarily need to comply with the notions of natural justice. As was stated by the Full Bench in Pinawin, it might normally be expected that in order to hold a belief on reasonable grounds about something such as the serious misconduct of a person, a discussion with that person would have occurred. However, as was evident in that instance, there appears to be circumstances where a belief regarding serious misconduct can be established on reasonable grounds even if the subject matter of that belief was not tested in any direct way with the person alleged to have committed the misconduct.

[59] The circumstances in which an employer might form a belief on reasonable grounds that an employee had committed serious misconduct without first testing the subject matter of that belief directly with the accused employee, would seem to be confined to the unusual circumstances identified by the Full Bench in Pinawin wherein it was stated “However this is a very unusual case.” 5 Consequently, any investigation or inquiry undertaken by an employer is an important aspect of any consideration as to whether any belief was subsequently formed on reasonable grounds. However, in some unusual circumstances that investigation or inquiry need not comply with the recognised notions of natural justice in order to be held to have been made on reasonable grounds.

[60] In the circumstances of this case, the employer conducted an investigation into the allegations made against the applicant regarding physical disciplining of children. The employer had attempted on two occasions to complete the investigation by way of formal interview with the applicant. Following the cancellation of the second attempt to conduct a formal interview with the applicant, the employer formed the belief that the applicant had committed serious misconduct described as physically reprimanding children. In addition, the evidence has established that the employer also believed that the applicant’s conduct in contacting parents and making inquires as to whether they had made complaints represented serious misconduct.

[61] The applicant had not been provided with any specific details of the allegations regarding her physically disciplining children. The most significant allegation was that made by another employee in respect to the 17 October incident. The applicant had been made aware that the allegation regarding the 17 October incident involved her hitting a child. The applicant denied any knowledge of hitting children when the allegation was raised in general terms at a staff meeting and she subsequently denied hitting a child when it was put to her directly by Mr Moussa. 6

[62] There was compelling evidence which established that the child was hit on the buttocks on 17 October 2012. Three individuals observed the red mark on the child’s buttocks and an ice pack was applied to the injury. Consequently, at an early stage Mr Moussa was presented with conclusive evidence that a child had been hit at the preschool on 17 October 2012. Further, putting aside the highly unlikely prospect that the red mark on the child could have been the result of some previously inflicted contact, the circumstances surrounding the surfacing of the allegation meant that the child must have been hit either by the applicant or by the other employee, Ms Oganesian.

[63] It is highly regrettable that Mr Moussa did not act more decisively when presented with the circumstances which emerged on the afternoon of 17 October 2012. He was presented with clear evidence that a child had been hit at the preschool earlier that afternoon. There was no satisfactory explanation provided for there being no immediate inquiry involving the applicant, Ms Oganesian, and other employees in the vicinity of the toilets on the day. Further, it was disturbing to note that no steps were taken to advise the parents of the child who had been hit, or to expediently report the matter to relevant authorities.

[64] Some accommodation can be made for Mr Moussa’s inexperience in operating a childcare centre. However, there was clear evidence that the overriding motivation for not dealing with the 17 October incident with the level of seriousness and speed that it demanded was to avoid any possible impact that it may have had on the NQA. The actions and inactions of Mr Moussa had the effect of covering up the 17 October incident at least until after the NQA was conducted on 25 October.

[65] The employer's investigation into the allegations which had been made against the applicant should have been undertaken and finalised within days of the 17 October incident rather than months. Nevertheless, the test that I am obliged to apply in accordance with the application of the Code is whether there were reasonable grounds for the employer to believe that the applicant had committed the serious misconduct involving physically reprimanding children.

[66] Having carefully considered the totality of the employer's investigation into the allegations made against the applicant, there are a number of factors which support a proposition that it represented a reasonable basis upon which the employer’s belief was established. These positive factors include that; (a) the applicant had been advised of the allegations albeit in general terms, (b) the applicant had been directly interviewed by Mr Moussa and had denied hitting a child, (c) written records were made of interviews with the employee who made the primary allegation and others materially connected with the allegation, (d) the employer had made two unsuccessful attempts to conduct a formal interview with the applicant, and (e) the applicant's conduct in regard to communicating with parents seeking to discover who had made complaint against her.

[67] Balanced against these positive factors there were a number of aspects of the employer's investigation which revealed error or deficiency and would operate against a proposition that it represented a reasonable basis upon which the employer's belief was established. These detracting factors include; (a) the absence of clarity regarding the complainant not actually visually witnessing the slap being inflicted on the child, (b) the failure to check attendance records for the first complaint, (c) the unacceptability slow pace with which the investigation was pursued, (d) the failure to report the matter to parents, the police or relevant authorities, and (e) the absence of formalised allegations including particularised details in respect to be 17 October incident, being formally put to the applicant and inviting a response.

[68] A careful evaluation of the various, competing aspects of the employer's investigation into the allegations made against the applicant leads me to conclude that although it involved unfortunate errors and deficiencies it nevertheless represented an inquiry which for the purposes of the Code, provided reasonable grounds upon which the belief of the employer was established.

Sufficiently Serious to Justify Immediate Dismissal

[69] The third component that I have identified in the application of the Code in instances of summary dismissal involves the question of whether the employer believed that the conduct of the applicant was sufficiently serious to justify immediate dismissal. It is important to recognise that the wording of the Code is directed towards the belief that the employer had, as opposed to any independent, objective assessment about whether the particular conduct was sufficiently serious to justify immediate dismissal. The Code would have little practical purpose if its operation was subject to the Commission's assessment as to whether the nature of the misconduct was sufficiently serious to justify summary dismissal. That assessment would occur as part of the routine processing of an unfair dismissal claim for circumstances other than small business.

[70] Consequently, the third component relevant to compliance with the Code requires that the Commission be satisfied that the employer did genuinely believe that the employee's conduct was sufficiently serious to justify immediate dismissal. Whether or not the Commission would endorse that belief is irrelevant for purposes of compliance with the Code.

[71] In this case there was some suggestion that the delay between the time at which the employer had first knowledge of the allegations of misconduct and the dismissal, indicated that at least initially, the employer did not treat the alleged misconduct of the applicant as conduct that was sufficiently serious to justify immediate dismissal. As mentioned earlier, this is a particularly troubling aspect of this case. The nature of the allegations made against the applicant and the compelling proof that the child had been slapped on 17 October, should have prompted Mr Moussa to immediately suspend the applicant and perhaps also Ms Oganesian, from duty.

[72] The evidence has revealed that Mr Moussa acted without appropriate and timely regard for the serious circumstances that he became aware of on 17 October in large part because he was motivated by his concerns regarding the impending NQA. Subsequent delays with the investigation can be attributed to a combination of inexperience and the obfuscation created by the issues surrounding the applicant's claim regarding work-related stress causing her illness and absence from work. Although the failure to suspend the applicant from work at an early time consistent with the seriousness of the alleged misconduct might ordinarily provide basis to impeach any subsequent summary dismissal, such considerations do not arise with the test relevant to the operation of the Code.

[73] An examination of the evidence does not provide for any finding that at the time that Mr Moussa made the decision to dismiss the applicant he did not genuinely believe that the misconduct of the applicant was sufficiently serious to justify immediate dismissal. This genuine belief is reflected in the wording of the letter of dismissal which mentions that consideration of “appropriate disciplinary action” had been undertaken and that termination of employment without notice was considered appropriate in the circumstances. In addition, the applicant's actions in contacting parents compounded the concerns that would have been relevant to Mr Moussa's decision to invoke summary dismissal as opposed to dismissal with notice.

[74] Consequently, I am satisfied that when Mr Moussa made the decision to dismiss the applicant, he genuinely believed that the applicant had committed misconduct that was sufficiently serious to justify immediate dismissal.

Conclusion

[75] This unfair dismissal claim has involved consideration of the application of the Small Business Fair Dismissal Code (the Code). In particular, the applicant was summarily dismissed on the basis of serious misconduct. In such circumstances the Code declares that it is fair for an employer to summarily dismiss if it believes on reasonable grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal.

[76] I have examined the specific requirements which arise from the wording contained in the Code. Further, I have approached consideration of the circumstances in this case with due regard for the Full Bench authority establish by the Decision in Pinawin.

[77] In this instance, upon careful examination of the evidence, I have found that; (a) the employer genuinely held a belief which represented the basis for the dismissal, (b) the belief of the employer was established upon reasonable grounds having particular regard for the nature of the inquiry and investigation made by the employer, and (c) the employer genuinely believed that the conduct of the applicant was sufficiently serious to justify immediate dismissal.

[78] Consequently, in view of the findings that I have made, the dismissal of the applicant must be held to have been consistent with the Code. Therefore the dismissal of the applicant is rendered by the Code to have been fair and the application for unfair dismissal remedy must be dismissed.

COMMISSIONER

Appearances:

Mr D Nagle, Counsel with Mr N Keats, Solicitor and Ms A Grayson, Solicitor on behalf of the applicant.

Mr B D Eurell, Counsel with Ms Katrina Mark, Solicitor on behalf of the respondent.

Hearing details:

2013.

Sydney:

June, 3.

July, 2, 4.

 1   John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359.

 2   Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café [2010] FWA 7891.

 3   Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922.

 4   John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359 @ Para [29].

 5 Ibid @ Para [38].

 6   Transcript of proceedings (2 July 2013) @ PN585 - PN590.

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