Ms Kerry Nebauer v Jenni Daley T/A Johnny Crows Garden Childcare Centre

[2012] FWA 6946

[2012] FWA 6946

FAIR WORK AUSTRALIA

DECISION

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

Ms Kerry Nebauer
v
Jenni Daley T/A Johnny Crows Garden Childcare Centre
(U2012/7359)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 17 AUGUST 2012

Unfair dismissal remedy - childcare centre - alcohol consumption - whether valid reason - reasonable belief - duty of care - Education and Care Services National Regulations.

[1] This matter concerns an application by Ms Kerry Nebauer (“the Applicant”) made under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant is seeking an unfair dismissal remedy in respect of the termination of her employment by Johnny Crows Garden Childcare Centre (“the Respondent”), in Cairns.

[2] The application was subject to conciliation by a Fair Work Australia conciliator, which was unsuccessful. Following a number of directions conferences dealing with such matters as timetabling and summonses to produce, the matter was set down for hearing in Cairns on 9 August 2012. Both the Applicant and the Respondent were self represented at the hearing.

[3] The Applicant had been employed by the Respondent since May 2011. She was dismissed from her employment on 20 April 2012.

[4] The Act provides that a person who has been unfairly dismissed may seek a remedy under s.394 of the Act. Section 385 of the Act reads as follows:

385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[5] At this juncture I note as an aside that the Respondent, despite being a small enterprise, was not a small business employer for the purposes of s.23 of the Act, as at the relevant time it employed 17 employees. There is no evident jurisdictional impediment to the application proceeding under s.394 of the Act.

[6] The Respondent’s reasons for dismissing the Applicant from her employment was that the Applicant was said to have smelt of alcohol and admitted to consuming alcohol on 19 April 2012 and was dismissed, having regard to the employer's duty of care and the Education and Care Services National Regulations (“the Regulations”).

[7] The Respondent formed the view that the Applicant’s conduct was in contravention of the obligations that fall upon the care service provider (or Licensee) under the Regulations. In this regard s.82 of the Regulations read as follows:

82 Tobacco, drug and alcohol – free environment

(1) The approved provider of an education and care service must ensure that children being educated and cared for by the service are provided with an environment that is free from the use of tobacco, illicit drugs and alcohol.

Penalty: $2000

(2) A family day care educator must ensure that children being educated and cared for by the educator as part of a family day care service are provided with an environment that is free from the use of tobacco, illicit drugs and alcohol.

Penalty: $2000

[8] Section 83 of the Regulations read as follows:

83 Staff members and family day care educators not to be affected by alcohol or drugs

(1) The approved provider of an education and care service must ensure that the nominated supervisor or a staff member of, or volunteer at, the service is not affected by alcohol or drugs (including prescription medication) so as to impair his or her capacity to supervise or provide education and care to children being educated and cared for by the service.

Penalty: $2000

[9] Identical provisions (in subsequent subsections of s.83 of the Regulations) apply to the nominated supervisor and family day care educator (as defined under the Regulations). Generally, the Regulations are designed to ensure that approved providers provide an environment in which alcohol and other drugs are not consumed and where staff that care and/or educate young children are not affected by alcohol (or other drugs) in the educational and care environment.

APPLICANT’S CLAIMS

[10] The Applicant’s version of events leading to her dismissal is relatively straightforward. She asserts that she reported to work at the ordinary time of 7:30 am on 19 April 2012. At about 8:20 am or so she was approached in the yard by Ms Heather Mayer, the Director, and directed to go home as she smelt of alcohol, and staff were available to cover her absence for the day. Before the Applicant left work, she stated that she followed Ms Mayer into the office. The Applicant states that at that time she was shivering and could not talk due to shock and sat there for some five minutes. After being handed a tissue by Ms Mayer, the Applicant claimed she simply collected her personal belongings and left for home.

[11] The Applicant says she did not challenge the claim that she smelt of alcohol because she was in such a state of shock about the allegations.

[12] The following day (Friday, 20 April 2012) the Applicant says that she telephoned Ms Mayer and Ms Mayer informed her that she had spoken to Ms Jenni Daly (the licensee\owner) and had been directed to inform the Applicant that given the events of the previous day she shouldn't bother returning as she no longer had a job with the Respondent.

[13] The Applicant claims that her dismissal was unfair for reasons that she:

• had not consumed alcohol prior to work and had made no admission to the contrary;



• was not affected by alcohol such that she was impaired;



• only drank alcohol with an evening meal and consumed alcohol socially on weekends on an occasional basis and then only has a “couple of drinks”;



• uses mouthwash and perfume to mask the smell of cigarettes; and



• had raised with Ms Mayer issues about the quality of care given over the lunch periods and had expressed concerns as to why she was not being paid when she undertook voluntary training outside of hours, and this had caused the Respondent to take an adverse view of her.

[14] In effect, the Applicant argues that the Respondent was either mistaken in its assumption that she had consumed alcohol and\or the actual reasons for her dismissal was that she had made complaints about the Respondent’s practices and conduct. The Applicant also claims that she was denied any procedural fairness in relation to her termination.

[15] The Respondent's evidence, however, brings some of the Applicant’s claims in these regards into question.

RESPONDENT’S CLAIMS

[16] At the outset, Ms Daly gave evidence that on Wednesday, 22 February 2012 the Applicant was interviewed by herself and Ms Mayer concerning a complaint by a parent that the Applicant smelt of alcohol. A complaint by a staff member had also been made that the Applicant had been aggressive towards her (the staff member) and some children at the centre.

[17] At that interview, the Applicant indicated that she was familiar with the regulatory environment in which the Respondent operated in respect of the use of alcohol, tobacco and other drugs.

[18] At that time, Ms Daly claims that she gave the Applicant a verbal warning that a repeat of conduct of this kind could result in dismissal.

[19] Ms Daly’s evidence in this regard was reflected in the evidence of Ms Mayer who also attended the meeting. Ms Mayer also retained a diary note of the interview on 22 February 2012.

[20] Ms Daly’s further evidence was that at about 8:15 am on Thursday 19 April 2012, she checked in with the opening supervisor, Ms Rose Canuto (Assistant Director).

[21] Ms Canuto informed Ms Daly that the Applicant had arrived late to work, had smelt of alcohol and her clothing was untidy.

[22] Ms Canuto’s evidence in this regard was corroborated by the evidence of Ms Mayer, who had also observed that whilst greeting staff that morning she had noticed the Applicant’s untidy appearance and that a strong smell of alcohol was coming from her.

[23] For her part, Ms Daly had a head cold on the day and could not verify the situation herself. Instead, Ms Daly directed Ms Mayer to convene an interview in the office with the Applicant and if the Applicant had been consuming alcohol or was under the influence of alcohol then the Applicant should be sent home. Following the interview in the office, Ms Mayer indicated to Ms Daly that the Applicant had admitted that she had been consuming alcohol, and had been sent home as a consequence.

[24] Ms Mayer's own direct evidence in this regard was that when she interviewed the Applicant in the confines of the office she could again readily detect the smell of alcohol. The discussion then proceeded upon the following lines, according to Ms Mayer:

I asked Kerry, “Have you been drinking?” To which Kerry Nebauer replied, “yes.”

Ms Mayer then said the Applicant turned into a corner of the room and started crying, and stated, “ I am so ashamed.” 1

[25] Ms Daly, Ms Canuto and Ms Mayer subsequently met and discussed the Respondent’s obligations under the Regulations - as cited above - and Ms Daly determined that in the interests of the children under her care and in the interests of the child care centre itself the Applicant should be dismissed.

[26] When the Applicant telephoned Ms Mayer on Friday, 20 April 2012 to enquire into her employment status, she was informed - so Ms Mayer says - that she had been dismissed for reasons of smelling of alcohol and admitting to having been drinking. The Applicant did not on Ms Mayer’s evidence, dispute the basis of the dismissal but mentioned the personal consequences of the dismissal and the fact her medical practitioner had advised her to take a period of extended leave.

[27] Ms Daly - as the decision-maker in relation to the dismissal - rebutted the Applicant’s contentions regarding her having made complaints about the Respondent’s quality of care and the failure of the Respondent to make payment for voluntary staff meetings. Ms Daly contended there was no issue about the adequacy of staffing coverage for lunchtime (as the Respondent had the minimum number of staff as required under the Regulations) and she had never received any complaint from the Applicant that there was. Further, Ms Daly contended that she had never had any complaint from the Applicant regarding attending voluntary, unpaid training.

[28] In any event, Ms Mayer gave evidence that the minutes of all the training meetings are placed on the lunchroom table for the benefit of those staff - of which there are a number - who are unable to attend the training. Given this wider practice, it was suggested that it would be unlikely that the Respondent would take an adverse view about any employees’ inability to attend voluntary training.

[29] Ms Daly also made claims that brought into question the Applicant’s description of herself as only a moderate, social drinker.

CONSIDERATION

[30] Section 387 of the Act, for its part, provides as follows:

387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

(h) any other matters that FWA considers relevant.

Was there a valid reason for the dismissal?

[31] I accept the evidence of Ms Canuto and Ms Mayer that the Applicant smelt of alcohol on the morning of Thursday, 19 April 2012. Their evidence interlocks despite being taken from different vantage points that morning. Both Ms Mayer and Ms Canuto struck me as being particularly professional in their approach to their roles and gave their evidence both earnestly and consistently. Neither person - in my view - would have fabricated their claims or conspired to jeopardise the Applicant’s employment, for whatever motive. Neither could have a discernible reason for doing so, and this was especially the case in relation to Ms Canuto, who appeared to have shared an amiable relationship with the Applicant.

[32] As is evident from the aforementioned, there is a clear dispute in the evidence between the parties in regards to the events of the morning of 19 April 2012. Most critically, the Applicant contends that there was no interview in the office conducted by Ms Mayer, and therefore no occasion on which she was ever asked questions in relation to her consumption of alcohol.

[33] According to the Applicant, she only entered the office as a mere transition to leaving the Respondent’s premises. If this were so, Ms Mayer would have had to have conveyed her concern to the Applicant about the smell of alcohol and to have directed her to go home whilst Ms Mayer and the Applicant were standing in the yard, in some proximity to young children. 2

[34] Ms Mayer claims that she would never under any circumstances have acted to deal with such matters in the vicinity of children under the care of the Respondent. This was one of the very reasons that she invited the Applicant to come with her to the office. Ms Mayer's evidence is in this regard corroborated by Ms Daly’s evidence which was that she gave a direction to Ms Mayer to interview the Applicant in the office.

[35] I prefer the evidence of Ms Mayer and Ms Daly in these regards. It appears to me that it would have been most improbable that Ms Mayer, given her professional disposition to which I have referred above, would have raised the relevant issues with the Applicant in the open yard and in the general proximity of the children. The issues were sensitive ones and demonstrably needed to be dealt with privately and in the confines of the office, removed from the wider children's environment. Ms Mayer's conduct also perfectly responded to the terms of the direction given to her by Ms Daly (and which formed part of Ms Daly’s direct evidence).

[36] Having established that the Applicant was invited to attend the office with Ms Mayer, it appears to me that it was most probable given the issues afoot that the Applicant would be queried as to whether or not she had been consuming alcohol. The likelihood of an enquiry being made of the Applicant is even more probable in the context of what Ms Mayer knew of the circumstances of 22 February 2012.

[37] My view of this matter is not informed by inference alone, but because I also prefer Ms Mayer's evidence in these regards. That evidence was to the effect that the Applicant was invited in to the office, she was queried as to whether or not she had been consuming alcohol, and she admitted she had, and was thereafter sent home.

[38] The Applicant initially gave evidence under my questioning that she was never asked the question in the office as to whether she had been consuming alcohol:

Did Ms Mayer say to you that - to ask you a question whether or not you had been consuming alcohol?---No, your Honour [...] 3

[39] And later:

[...] So you say the extent of the conversation was merely that Ms Mayer indicated that she believed that you smelt of alcohol and she sent you home that day and there was no question raised as to whether [she] expressly invited you to indicate whether or not you had been consuming alcohol?---That's correct, your Honour.  4

[40] However, the Applicant subsequently under further questioning gave evidence that the question did arise and that she had answered in the negative:

I know that Heather and I had spoken about talking to you about it. I didn't speak to you because I had had a cold that day and I wasn't going to make an accusation if I couldn't smell anything, but when both Heather and Rose could smell the same thing - you know my position. I would take their word for it, as you would take your word for it, because you work under them. So when Heather walked into the office Heather asked you a direct question. "Had you been drinking"?---And I said, "No."

No. Heather states that you said, "Yes"?---I said, "No."  5

[41] The Applicant's evidence, demonstrably, was inconsistent in these regards. I prefer Ms Mayer’s evidence and find that the Applicant did indeed make an admission to her (Ms Mayer) that she had been consuming alcohol.

[42] The Applicant also admitted to having no alcohol related issues. Whilst it may not constitute having “issues” with alcohol necessarily, under questioning, however, the Applicant did concede that she had been charged with drink-driving on two occasions in recent times, and injured herself (by tripping over) whilst intoxicated (and had admitted so to Ms Daly). 6

[43] It does not follow, in my view however, that the Applicant was impaired by alcohol on 19 April 2012. The admission that she had been drinking was not framed by any period of time. If the Respondent sought to determine definitively whether the Applicant was impaired (or “affected” by alcohol under the Regulations) it should have stood the Applicant down from her duties and requested that she present for a blood alcohol test to a medical practitioner before such time as she could resume any duties. Such a request might also reasonably have requested that the Applicant provide a general fitness for return to work in relation to any wider health issues.

[44] Consequently, I draw no conclusion that the Respondent had a valid reason for the dismissal of the Applicant on the basis that the Applicant was impaired for some definable degree by alcohol at a time when she was required to render care and educational services to toddlers and young children. That is, the Respondent cannot rely solely on an apparent breach of the Regulations to provide a valid reason for the dismissal of the Applicant.

[45] But this finding is far from the end of the matter.

[46] The evidence of Ms Daly and Ms Mayer was that the incident of 19 April 2012 had been preceded by an earlier incident in February 2012 in which the Applicant had been warned that her conduct in relation to alcohol consumption, amongst other things, had become a concern for the Respondent and at that time the Applicant had been warned that her employment was in jeopardy as a result.

[47] I do not doubt the evidence as given by Ms Mayer and Ms Daly and in this regard Ms Mayer's diary note sketches out the incident in some bare detail. The Applicant also recalls the complaint in relation to smelling of alcohol - which she held to be unfounded.

[48] Yet in the face of these express concerns (and irrespective of whether the Applicant agreed with their bases or not), the Applicant still conducted herself in such a way as to cause genuine concern on the Respondent’s part as to her professional approach to her duties.

[49] The Applicant’s conduct in presenting for work as she did on the morning of 19 February 2012, and having admitted to having been consuming alcohol, presented an insurmountable risk to her employer to manage effectively in the context of a child care centre. Indeed, with the admission in hand, arguably the employer had the basis for holding an honest and genuine belief the Applicant’s continued employment in a child care centre was unsustainable. 7

[50] Conversely, the Applicant herself should have realised that given her prior circumstances, she had a duty to give confidence to her employer that she could professionally conduct her duties – which concern the care, supervision and education of very young children. But by presenting for work in the condition she did she undermined critically the Respondent's confidence in her professionalism and in her capacity to support the Respondent’s general duty of care.

[51] In other circumstances an employer might stand down an employee on an indefinite basis and not allow a resumption of work until a medical certificate indicating the employee was fit in all respects to resume the ordinary duties was provided. This approach has much to commend in the ordinary case.

[52] But this is no ordinary case.

[53] Here, the Applicant worked with very young children and toddlers. She knew her employer was concerned about a prior complaint that she had smelt of alcohol and that this had placed her employment at risk at the time. She appreciated the regulatory framework in which the Respondent operated. But on 19 April 2012 the Applicant presented for work having by her own admission been consuming alcohol. She smelt of alcohol to her colleagues at work.

[54] In my view, in the particular circumstances of this case, the Respondent possessed a valid reason for the dismissal. The Applicant had breached the employer's confidence by her own admission, she had done so on the basis of full knowledge of the implications, and she had presented to her employer a risk that it could not reasonably manage other than by ensuring the Applicant was removed from the child care environment.

[55] If there had been no prior incident, and perhaps if the Applicant had been unaware of her employer's keen sensitivities, then it might have been more the case that the Respondent should have acted cautiously and treated the Applicant’s situation as a health or related issue and stood the Applicant down. But in presenting for work in a child care centre in the condition that she did, smelling of alcohol and admitting to having been consuming alcohol (in the context of a prior warning) the Applicant struck at the heart of the Respondent's confidence in her capacity and judgment to perform duties in the child care centre, and placed the Respondent in a position where it had to manage its risks decisively. And the Respondent did just that.

[56] Having established that there was a valid reason for the dismissal for purposes of s.387(a) of the Act, I now need to take into account whether or not the Applicant was extended procedural fairness in relation to the dismissal, amongst other matters set out below.

s.387(b) and s.387(c) of the Act

[57] On the evidence available to me, as set out above, it seems evident that the Applicant was not notified prospectively of the reason for her impending dismissal for the purposes of s.387(b) of the Act, nor was she given an opportunity to reply for the purposes of s.387(c) of the Act.

[58] In any event, the reasons stated for the dismissal by the Respondent are not those necessarily as I have found to be, making compliance with these two subsections even more difficult.

s.387(d) of the Act

[59] Given the circumstances of the matter and the effective summary nature of the dismissal, no opportunity arose for the Applicant to seek a support person to assist her in any discussions relating to the dismissal for the purposes of s.387(d) of the Act.

s.387(e) of the Act

[60] The matter in contention turned on an issue of conduct and not an issue of the unsatisfactory performance of the Applicant’s duties. Therefore there are no considerations which I must take into account for the purposes of s.387(e) of the Act.

s.387(f) and (g) of the Act

[61] It is probable that the size of the employer's enterprise and its access to dedicated human resource management specialists or expertise may have impacted on the procedures that were followed in effecting the dismissal for the purposes of s.387(f) of the Act and s.387(g) of the Act. I can infer this from the materials before me that demonstrate that at the time the Applicant was dismissed, the Respondent employed seventeen employees in total; only slightly more than required to meet the statutory definition of a small business.

[62] But beyond that, no developed submission of any kind was put to me in this regard and there is nothing of a direct nature that I can take into account

s.387(h) of the Act

[63] Section 387(h) of the Act requires me to take into account any other matters that the tribunal considers relevant to the application.

[64] In my view the Applicant was dealt with summarily by the Respondent, and this is a relevant consideration. Where an employee’s employment is terminated summarily, and an employee has not had opportunities to challenge the decision making process etc, issues may fairly arise - as in this case - as to whether or not the person was dealt with harshly.

CONCLUSION

[65] In considering whether I am satisfied that a dismissal was harsh, unjust or unreasonable I must take into account the above matters. The Applicant was dismissed abruptly and without an opportunity to explain herself or to garner any medical advice. As I said earlier, in ordinary circumstances an approach to a dismissal of this kind might place the decision of the employer in jeopardy.

[66] But notwithstanding the summary nature of the dismissal, the Applicant had acted to breach the confidence of her employer in a conspicuously serious manner, given the nature of the work environment and the duty of care under which it was obliged to conduct its particular business.

[67] Having once warned the Applicant, and now faced with an admission as to alcohol consumption, the Respondent was left with little other reasonable choice than to take the action that it did.

[68] Despite the absence of procedural fairness in the decision-making process and the lack of engagement with the Applicant over the central issue, I nonetheless have decided in the circumstances that the dismissal was not harsh, unjust or unreasonable.

[69] Because I have reached this conclusion I must therefore dismiss the application as before me under s.394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K. Nebauer for herself.

Ms J. Daly for the Respondent.

Hearing details:

Cairns.
2012.
9 August.

 1   Transcript of proceedings dated 9 August 2012 at PN340.

 2   Transcript of proceedings dated 9 August 2012 at PNS 379-384.

 3   Transcript of proceedings dated 9 August 2012 at PN 68.

 4   Transcript of proceedings dated 9 August 2012 at PN 75.

 5   Transcript of proceedings dated 9 August 2012 at PNS 143-144 and see also 152.

 6   Transcript of proceedings dated 9 August 2012 at PNS 100-105.

 7   Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224 at 229-230.

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