Ms Manisha Yadav v Maddingley Montessori Centre Pty Ltd
[2018] FWC 2883
•7 JUNE 2018
| [2018] FWC 2883 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Manisha Yadav
v
Maddingley Montessori Centre Pty Ltd
(U2018/1329)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 7 JUNE 2018 |
Application for an unfair dismissal remedy; childcare worker; conduct in dealing with children; whether misconduct; whether serious misconduct; whether reason for dismissal a valid reason; notification of reason and opportunity to respond; dismissal unfair; further hearing to consider remedy.
[1] When a parent leaves a child in the care of child care professionals at a childcare centre, there is an expectation that the child will, amongst other things, be treated in a manner that is professional, caring, nurturing and appropriate having regard to the child’s age and the circumstances in which that care is delivered. A parent would not expect the child to be roughly handled or unfairly treated by the childcare professionals into whose care of the child is delivered. When CCTV footage emerges of particular treatment of a child or children by a childcare professional that is less than optimal, the first reaction might be shock.
[2] In the background audio to one of the pieces of footage in evidence in this case, an audible reaction of a viewer, consistent with shock, may be heard. That reaction is understandable, but, it is the first reaction. It must be tempered by a thoroughgoing review of the circumstances surrounding the images the CCTV footage has captured and a careful examination of the actual conduct that the footage discloses. Often at times, that which appears to be one thing might very well be another. Conduct captured by CCTV footage may also be satisfactorily explained so that an assessment of its seriousness is appropriately measured.
[3] This is a case in point. It is a case that cannot be resolved by reference to one’s first blush reaction to images of that which may best be described as the less than optimal and unprofessional treatment of some children in the care of a childcare professional at a childcare centre. All too often, poor or unprofessional conduct is viewed as the end of the road – as a sign of bad character. Yet, we all falter more than we realise. When we do, one hopes that we are motivated to make amends and to do better. Poor or unprofessional conduct, to which an appropriate response is given, may just be the beginning of something better.
[4] Ms Manisha Yadav (Applicant) commenced employment with Maddingley Montessori Centre Pty Ltd (Respondent) on 27 September 2016 and was employed as a Child Care Assistant. The Applicant was summarily dismissed from her employment with the Respondent on 25 January 2018, on the basis of gross misconduct said to be evidenced in the CCTV footage. 1 On 9 February 2018, the Applicant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.
[5] Turning first to deal with the initial matters which must be decided before the merits of an application are considered. 2 These matters were not in dispute, and I find that:
• The application was made within the time prescribed in s.394(2) of the Act;
• The Applicant was, at the date of her dismissal, protected from unfair dismissal within the meaning of s.382 of the Act;
•
• The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and
• The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.
[6] I have concluded that the Applicant’s dismissal was unfair. These are my reasons for that conclusion.
Background and factual findings
[7] The Applicant moved to Australia, from India, in around May 2014 3 and completed a Certificate III in Early Childhood Education and Care in 2015.4 The Applicant was employed as a Child Care Assistant by the Respondent at its Childcare Centre in Maddingley, on the western outskirts of Melbourne from 27 September 2016.5 The Applicant’s role included supervising and monitoring the children in her care, preparing meals and snacks for the children, changing nappies, cleaning, taking photos of the children when they were engaging in activities for their records and providing feedback to parents when they arrived at the end of the day to collect their children. The Respondent’s Maddingley Centre has one toddlers’ room (catering for two to three year old children), two kindergarten rooms (catering three to six year old children) and a babies’ room (catering for one to two year old children). At the time of her dismissal the Applicant was assigned to work in the toddlers’ room. The Applicant’s employment was terminated by the Respondent on 25 January 2018, with immediate effect.6
[8] The Applicant was advised of her dismissal at a meeting held at approximately 2.00pm on 25 January 2018 with Ms Natasha Tyrer, Centre Manager and Ms Elisa Kate, Second in Charge. At the meeting the Applicant was told that the Respondent had CCTV footage to support and warrant the Applicant’s dismissal on the grounds of gross misconduct. A termination letter was emailed to the Applicant following the meeting on 25 January 2018 (Termination Letter). 7 The footage was not shown to the Applicant despite a number of requests. Following the meeting, the Applicant gathered her belongings and left the child care centre. The Termination Letter was emailed to the Applicant at approximately 7.00pm by Ms Alexandra Loizou, Human Resource Manager at AMIGA Montessori Centre.
[9] The text of the Termination Letter sent to the Applicant is extracted below:
“Dear Manisha,
Re: Termination for Gross Misconduct
As per your conversation with Natasha Tyrer – Centre Manager, please be advised that you have been terminated for gross misconduct effective immediately.
Issue: Manhandling a child
Evidence: Video
You will be paid for all hours worked, up to the 25th January 2018 and all accrued annual leave entitlements.
If you have any further questions, please contact Alexandra Loizou at Wall Street on 03 9868 9950.
Regards,
Alexandra Loizou”
[10] The matters outlined above at [6] – [8] are not contested and I find accordingly.
[11] On 25 and 27 January 2018 the Applicant sent two emails to Ms Loizou requesting for more information about the reason her employment had been terminated. The Applicant says that she attempted to call Ms Loizou but that Ms Loizou did not respond. 8 The Applicant’s evidence is that she called Ms Loizou again on 29 January 2018 but that she was again not available. Ms Loizou called the Applicant later that day and provided the Applicant with some brief details of the three incidents recorded on the CCTV footage which was recorded on 25 January 2018. The Applicant says that she was told that the incidents occurred in the space of an hour and was told that the Applicant’s conduct amounted to gross misconduct.9 Following the telephone call, the Applicant says that she sent an email to Ms Loizou requesting that she confirm the points she had raised in their telephone call. Ms Loizou did not reply to the Applicant’s email. The Applicant’s evidence is that she attempted to call Ms Loizou on a number of occasions but that the receptionist told the Applicant that Ms Loizou was unable to provide any further explanation.10 None of this evidence is contested and I accept it.
[12] On 30 January 2018, the Applicant received her final payment of her salary up to 25 January 2018. The Applicant says that she was not paid her accrued annual leave of approximately 9 hours and that she was also owed eight hours of time in lieu. 11 This is not contested and I accept it.
[13] The nature and gravity of the conduct said to constitute the reason for the dismissal is in dispute. In particular, the surrounding circumstances and context in which conduct that is captured by the CCTV footage occurred is contested, in the sense that the Respondent maintains that there can be no excuse for the conduct and that it was serious (or as it put) gross misconduct. Unfortunately, the Respondent called no evidence about the contextual matters about which the Applicant gave evidence. There was no investigation before termination of employment was effected. An explanation from the Applicant was not sought. The other child care worker observed in some of the CCTV footage was not spoken to before termination of employment was effected nor was that carer called to give evidence by the Respondent to contradict the evidence given by the Applicant. The parents of the children said to have been “manhandled” were not spoken to before the termination of employment was effected, nor was any parent called to give evidence to contradict the contextual evidence given by the Applicant. In fact no one from the child care centre or more broadly from the Respondent was called to give evidence, not even those who made or who had the authority to make the decision to terminate the Applicant’s employment. Respectfully, the Respondent’s case in response to the Applicant’s application was wholly inadequate.
[14] The Applicant contends that the reason for her dismissal is not a valid reason as there is no evidence of any conduct which would warrant dismissal, much less summary dismissal. 12 The Applicant maintains that the surrounding circumstances and context to the conduct disclosed in the CCTV footage is critical in the assessment of the Applicant’s dismissal. The Applicant relies on the context as it illustrates the challenges raised when dealing with toddlers. The Applicant maintains that child care workers are unlikely to always perform optimally and consistently with best practice and says that in hindsight she could have dealt with the situations in a “better way”.13
[15] The Respondent submits that to allow the Applicant to continue to work would amount to negligence on their part given their duty to ensure the children were kept from harm, that the manhandling of the children on these occasions were so far outside of reasonable physical contact between workers and toddlers and that no amount of performance management would remedy the situation. 14 The Respondent further submits that given the plainly evident inappropriate physical handling of the children, the Respondent takes the view that there was no explanation that the Applicant could give that would satisfactorily justify a decision to not summarily dismiss her.15
[16] A summary of the images captured by the CCTV footage which led to the Applicant’s dismissal is set out later below.
The Respondent’s practises and policies
[17] The Applicant says that when she signed her contract of employment with the Respondent she was provided with an Induction Manual for the child care centre. She says that a few months after she commenced employment, Ms Tyrer called the Applicant in to her office and provided her with a large folder of documents. The Applicant’s evidence is that the folder contained a number of policies. The Applicant says that to the best of her knowledge the policies were regarding issues such as evacuation, food handling, sun safety and uniform requirements. 16 The Applicant’s evidence is that she spent approximately 10 minutes reading the documents in the folder and indicated that she mostly read the titles of each policy. She said that she signed the document indicating that she had read the folder and then went back to her normal duties.17 The Applicant says that upon leaving Ms Tryer’s office she was provided with a document called the Employee Handbook and was told to take it home and read it.18 The Applicant says that she assumed that the Employee Handbook applied to her appointment despite the fact that it stated to be for the ‘Point Cook Amiga Montessori Centre’, which is one of the other centres that operates as part of the ‘Amiga Montessori’ brand.19 The Respondent did not call any evidence to contradict the Applicant’s evidence.
[18] The Employee Handbook notes that the Respondent’s commitment to each member of its team is to: 20
“…
• provide every individual with the opportunity to reach their full potential;
• establish and effectively communicate consistent, achievable performance standards;
• provide regular individual feedback on performance and personal development
•
[19] The Employee Handbook sets expectations of staff and educators as follows: 21
“…
• staff and educators are expected at all times to display a highly professional standard of care giving skills and to work together as a team to ensure that all of the centre's policies and procedures are being followed at all times.
•
[20] The Employee Handbook sets out the employee and employer responsibilities. 22 An employee can expect, inter alia, to:
“…
• receive training and instruction for the assigned job;
• receive feedback on unsatisfactory performance;
…
• receive open, honest communication throughout the organisation.”
[21] It sets out that which an employee can expect in an orientation session as follows: 23
“the orientation session, which you will partake in prior to commencing employment on your first day provides you with a complete company outline, an understanding of our principles, our company structure, vision, values and more. In this first day session you will be briefed on a wide range of topics relating to your role within our business, what we will expect from you and what you should expect from us in return.”
[22] The Employee Handbook sets out that which should occur if an employee finds that he or she is less capable of performing duties, as follows: 24
“If the nature of your job changes, or if we have general concerns about your ability to perform your job, we will try to ensure that you understand the level of performance expected of you and that you receive adequate training and supervision. Concerns regarding your capability will normally first be discussed in an informal manner and you will be given time to improve.
If your standard of performance is still not adequate, you will be warned in writing that a failure to improve and to maintain the performance required could lead to your dismissal. We will also consider the possibility of a transfer to more suitable work if possible.
If there is still no improvement after a reasonable time and we cannot transfer you to more suitable work, or if your level of performance has a serious or substantial effect on the business to its detriment, you may be dismissed or issued with a final warning that you will be dismissed unless the required standard of performance is achieved and maintained.
If such improvement is not forthcoming after a reasonable period of time, you will be dismissed with the appropriate notice.”
[23] A disciplinary procedure is also set out in the Employee Handbook. It provides as follows: 25
“…It is our aim that the rules and procedures should emphasise and encourage improvement in the conduct of individuals where they are failing to meet the required standards, and not be seen merely as a means of punishment.
It is the policy of the Centre to be prompt, fair, consistent and constructive in the handling of all disciplinary issues. A disciplinary procedure has been developed that is based on the principle that an employee who is performing in an unsatisfactory manner should not be left in a position that he/she assumes they are meeting the Company's requirements. They should be given opportunity and support, to correct the situation.
•
[24] The Employee Handbook sets out conduct which is said to constitute serious misconduct as follows: 26
• Refusal of duty (for other than a safety reason)
• Serious breach of workplace safety
• Placing a child under our care in serious harm
• Theft of Company property, larceny or fraud
• Working under the influence of alcohol or drugs
• Serious or deliberate misconduct
• Gross negligence, malingering or neglect of duty
• Striking another person on Company premises
• Fraudulent acts
• Conviction of a criminal offence or other activity which would bring the Company’s name into disrepute
For the sake of clarity, the following scenarios (whilst not limited to) will result in an employee being dismissed without notice: 27
• Wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment
• Caused a serious and imminent risk to the health and safety of a person
• Caused a serious and imminent risk to the reputation, viability or profitability of our business
• Conduct in the course of your employment engaging in theft, and in the circumstances your continued employment during a notice period would be unreasonable
• Conduct in the course of your employment engaging in fraud, and in the circumstances your continued employment during a notice period would be unreasonable
• Conduct in the course of your employment engaging in assualt, and in the circumstances your continued employment during a notice period would be unreasonable
• You were intoxicated at work, to the extent that you were so impaired that you were unfit to be entrusted with you employment duties
• You refused to carry out a lawful and reasonable instruction that was consistent with your contract of employment, and in the circumstances your continued employment during a notice period would be unreasonable
[25] The Employee Handbook sets out, without limitation, the circumstances in which an employee’s employment may be terminated without notice or without payment in lieu of notice as the following: 28
• Commit any serious or persistent breach of any terms of the Contract
• Are guilty of dishonesty, misconduct or neglect in the performance of your obligations under the Contract
• Become insolvent or bankrupt or make any assignment or arrangement with your creditors
• Are convicted of any criminal offence relevant to the performance of your obligations under the Contract
• Refuse to comply with any reasonable instruction or direction including any failure to comply with your obligations under any of our rules, policies and/or procedures and any directions given by management
• Fail to perform to the standard reasonably expected by the business, including persistent failure to achieve targets in your personal performance plan
• Obtain a medical assessment result that it is not satisfactory and which objectively results in you being unable to perform your duties set out in the Contract
• Abuse alcohol or drugs whilst on our premises, or just prior to commencing work on the premises, which adversely affects your ability to carry out your duties
• Engage in physical abuse or display unreasonable verbal aggression
• Perform your work in a manner reasonably considered to be unprofessional or unsafe
• Engaging in conduct which we reasonably considers is likely to damage the Company’s reputation or
• Committing any act of dishonesty such as embezzlement, theft or fraud involving the Company’s assets or property.
[26] The Applicant says that she commenced her employment with the Respondent and was trained on the job. She says that she performed her normal duties while observing other members of the team to see how they did things, including learning the normal routines of the centre and learning behavioural management techniques. The Applicant’s evidence is that in her role as a Child Care Assistant she worked under the supervision of a room leader and that generally each room had two people working in it at any given time. 29 This evidence was not disputed and I accept it.
[27] The Respondent held monthly staff meetings. The Applicant’s evidence is that during the staff meetings, Ms Tyrer would talk to the staff inter alia about centre management, including the importance of maintaining the appropriate child to educator ratios, arriving on time and keeping bags in lockers and not in the storage rooms. 30 The Applicant says that the centre often practiced fire evacuations and as child care workers they were expected to undertake external courses once a year to keep up to date with CPR practices. The Applicant says that they also had to do general first aid, asthma and anaphylaxis courses every three years.31 None of this evidence was challenged by the Respondent and I accept it.
Events leading to the dismissal
[28] It is not in dispute that on 18 January 2018, the Applicant told Ms Tyrer that she was pregnant and requested that she be moved from the toddlers’ room to the kindergarten room, or to become a break-cover carer (to cover the rooms of the other staff members when they were having breaks). 32 On 19 January 2018, the Applicant had a meeting with Mr Tyrer and Ms Kate about the Applicant’s tiredness and exhaustion due to her pregnancy. She again requested a room change. The meeting concluded without the request being granted and the Applicant’s evidence is that she was told “we will see what we can do”.33
[29] On the date of her dismissal, that is 25 January 2018, the Applicant attended her shift at work at 9.00am, she says that she had back pain and was not feeling well. 34 On this day, there were 11 children in the toddlers’ room and two staff members. The Applicant says that at around midday that day she took her lunch break and complained to Ms Tyrer that she was feeling unwell and wanted to go home for the day. The Applicant also says that she advised Ms Tyrer that the other staff member, Ms Jayde Stanley, was not doing her share of the work. The Applicant was told that the child care centre was understaffed and that she could not go home.35 This evidence is not disputed and I accept it.
[30] As a consequence of the Applicant’s complaint about workload, Ms Tyrer reviewed the CCTV footage of the day in order to assess the performance of Ms Stanley. My summary of that which in captured in the CCTV footage follows below.
[31] In footage one (1) the Applicant is seated on a toddler’s chair facing the camera. At:
• 13 seconds while seated, the Applicant attempts to take hold of a female toddler by her t-shirt then by the right arm in an attempt to pull the toddler towards her, the toddler breaks free and falls;
• at 21 seconds the Applicant using her right arm takes hold of the female toddler by the right arm and pulls the toddler into the Applicant’s body, the toddler appears to stumble and the Applicant then rubs her face either wiping it or attempting to apply sunscreen; the toddler is resisting and appears to be crying;
• at 30 seconds the Team Leader walks into frame, her back is to the screen and the view of the Applicant is obscured, the Team Leader does not appear to say anything to the Applicant or react to the situation, she then walks away;
• at 33 seconds the female toddler can be seen walking away from the Applicant in apparent distress as she appears to be crying;
• at 49 seconds the Team Leader again enters the frame and picks up some paperwork near where the Applicant is sitting; the female toddler appears still to be crying but shortly thereafter, appears to have stopped; there is no apparent reaction from the Team Leader
• at 53 seconds the Applicant takes hold of a male toddler and appears to be wiping the child’s face with what appears to be a tissue or wet wipe, the Applicant is holding the toddler’s right arm with her left arm; the face wiping appears playful;
• at 1 minute and 12 seconds the toddler appears to walk away;
• at 1 minute and 14 seconds the Applicant uses her right hand to move the toddler away from her. The Applicant’s right hand appears to be touching the toddler’s right shoulder or upper right hand side torso, just before the movement of her right arm, which is said to be a push. There is some acceleration in the toddler’s forward motion, though it is not clear whether this is caused by the Applicant’s arm motion or by the toddler simply running with the motion. The Applicant can then be seen pointing in the child’s direction. He does not appear upset or distressed. The Team Leader is no more than a few feet away; she is not looking in the direction of the child or the Applicant at the time of the motion said to be a push.
[32] The Applicant’s evidence in relation to the first footage is that she was applying sunscreen to the toddler’s face. The Applicant says that it is the Respondent’s policy that children are not allowed outside unless they have sunscreen on. The Applicant’s evidence is that this particular toddler is well known to both the staff and her parents to dislike sunscreen applied on her, and that she screams and cries each time it is done. 36 The Applicant says that it was in that context (the reluctance) that she pulled the toddler towards her and held her while the toddler was trying to wiggle away.37
[33] The Applicant maintains that her behaviour in this instance was not out of the ordinary, much less “gross misconduct”. 38 The Applicant maintains that it is consistent with the manner in which other staff have applied sunscreen to the toddler. The Applicant says that Ms Stanley who was present at the time, did not comment on her behaviour, either at the time of the incident or afterwards. The Applicant also says that Ms Stanley did not report the incident to management. The Applicant maintains that she has a good relationship with the toddler and that she was the toddler’s favourite amongst the staff and that she would often run up to the Applicant and give her hugs. The Applicant also says that she had a great relationship with the toddler’s mother and that they often chatted at the end of the day.39
[34] The Applicant’s evidence given during cross-examination in respect of the above footage is as follows:
“Okay. So you saw that there's that little girl standing a short distance away from you?---Yes.
And you grabbed her by the hand but she pulled away from you and fell over and sat down; is that right?---(Through interpreter) I was calling her so that I could apply sunscreen on her.
Then you see that you grab her and you pull her into your body, don't you?---That child didn't like to put sunscreen on her, and her mother is also aware of that. And I had to pull her towards me to put some sunscreen on her.
Do you agree that when you've handled this little girl your handling was rougher than it should have been in hindsight?---I could have done better.
If you could play the video.
DVD PLAYBACK CONTINUING [10.43 AM]
MR KELLY: See there you've just applied some sunscreen to that toddler's face. You agree with that?---(Direct) Mm-hm.
What were you doing?---(Through interpreter) I was cleaning his nose.
And as that toddler has walked away you put your hand in the middle of that toddler's back and gave a push?---No, the child run away by himself and I was trying to call the child to come towards me.
So are you saying you didn't push that child in the back?---No.
Perhaps if we go back just a few seconds. Look carefully.
DVD PLAYBACK CONTINUING [10.45 AM]
MR KELLY: Do you see that?---I see this. I did not push any child, but the child has run away by himself.
Do you agree that it looks like you have put your hand in the middle of that child's back as he's walking away and you've pushed him and he has sped up as you've pushed him?---His back?
Pushed him in the back?
MR MUDHER: But what else you said the child's - - -
MR KELLY: That when you've pushed him, he has sped up.
MR MUDHER: Can - - -
MR KELLY: He's got faster?
MR MUDHER: Yes, he go faster, sorry?---No, it was normal. That's how he acts.
MR KELLY: Because if you had pushed him, there would be no justification at all for that would there?---I did push.
THE DEPUTY PRESIDENT: I'm sorry, Mr Translator, was that a “didn't push”?
MR MUDHER: I didn't push.” 40
[35] There are two incidents shown in footage one. I will describe these as the “sunscreen incident” and the “pushing incident”.
[36] There is little doubt that the way in which the Applicant approached the application of sunscreen to the toddler in the sunscreen incident was less than optimal or best practice. The Applicant concedes this. But the sunscreen incident is not nearly as serious as the Respondent would like to have me hold. The toddler is generally resistant to the application of sunscreen. This is not disputed. Steps need to be taken to apply sunscreen to a resistant toddler. Such steps presumably need to be taken on each occasion the child resists. In the Applicant’s witness statement filed and served before the hearing, the Applicant said that other staff applied sunscreen to this toddler in question in the same manner. The Respondent called no evidence to contradict this even though it was on notice about the evidence the Applicant would give. No satisfactory explanation has been given why this and other evidence from employees of the Respondent could not be called. I therefore accept that some physical handling of the toddler during the application of sunscreen may be necessary.
[37] Although during the hearing I indicated that an option might have been to simply keep the toddler indoors while the other children to whom sunscreen has been applied were permitted outdoors, this is not a practical solution for a number of reasons not the least of which is that one childcare worker would need to remain indoors supervising the resistant toddler, while the other would be required to supervise the remaining toddlers while those children played outdoors. This would significantly dilute the proportion of carers to children who are playing outdoors.
[38] Moreover, the seriousness with which I assess the sunscreen incident is supported by the lack of reaction from the Team Leader who, at least according to that which is visible from the footage, did nothing, said nothing, and at least on the available evidence, raised no concern about the Applicant’s interaction with the toddler during the sunscreen incident. She did not raise any concern with the Applicant or with anybody else at the centre. The lack of reaction and the lack of reporting tends to corroborate the Applicant’s account that this was not an unusual interaction with this toddler whilst sunscreen was being applied and that other carers interacted with the child during attempts to apply sunscreen in a similar way.
[39] The Applicant’s interaction with the toddler during the sunscreen incident was less than optimal. The pulling at the child occurred because, in my view, the Applicant did not get out of her chair in which she was seated and move towards the toddler. Had she done so and picked up the toddler and transported her back to the chair on which the Applicant was sitting, the toddler would less likely have reacted in the way she did and any resistance displayed would more likely have been easier to control. The conduct discloses the need for counselling and further training, but it does not disclose misconduct of the magnitude to which the Respondent seeks to elevate. It was unprofessional conduct.
[40] The footage of the pushing incident is inconclusive. The Applicant denies that she pushed the toddler in question. On the face of the footage there is right arm movement by the Applicant in the direction of the toddler’s upper right hand side torso. There is some observable acceleration in the toddler’s stride, but that would be consistent with the toddler running away as the Applicant suggests, with the Applicant moving the toddler on, as well as with pushing. If there was a push it was in my opinion, slight, and no more than an indication of “off you go”. Much like the first incident the observable incident (if it was a push) constituting the “pushing incident” is not of the magnitude to which the Respondent seeks to elevate it. However, as the footage is inconclusive, the Applicant denies that she pushed the toddler, and there is no other evidence suggesting a contrary view, I am not satisfied that the Applicant pushed the toddler as suggested by the Respondent.
[41] In footage two (2) the Applicant can be seen standing and apparently directing a child to do something, the Team Leader can be seen sitting at a table completing some paper work. At:
• 9 seconds the Applicant takes hold of the male toddler by the upper right arm and walks the male toddler to a black mat closer to the camera;
• at 14 seconds, the Applicant releases the male toddler and he appears to pick something up from the mat, it appears to be a sandwich and the toddler proceeds to eat the sandwich;
• the Team Leader does not look up and continues writing;
• the toddler does not appear to be upset or distressed.
[42] The Applicant concedes that she grabbed the toddler by the upper arm 41 but says that the toddler had thrown his sandwich on the floor and that she had asked the toddler on a few occasions42 to pick up his sandwich. As the toddler did not listen to her instruction and instead left the area and started playing, the Applicant took the steps shown in the footage. The Applicant says that she approached the toddler, held him by the arm and directed him to the mat on which he had dropped the sandwich. The Applicant says that he started eating his sandwich. The Applicant maintains that the toddler was not distressed or harmed in any way. She says that the reason she directed him to pick up his sandwich was because it is part of her role as a child care worker to model good behaviour to the children in her care.43 The Applicant says that Ms Stanley was in the room for the entire incident and she again did not comment on the Applicant’s behaviour, either at the time of the incident or afterwards.44
[43] The Respondent put to the Applicant that she was frustrated with the toddler, but the Applicant maintained that she was not, but that she was teaching the toddler. 45
[44] The incident captured in footage two (2) shows the Applicant taking hold of a toddler by the upper right arm and walking with the toddler to a mat at which point she releases the hold. The toddler picks up that which appears to be a sandwich and begins to eat it. As I have already noted, the Team Leader who was present in the room and visible in the footage, was not called by the Respondent to give evidence. No satisfactory explanation was given by the Respondent for the omission. The Applicant explained and I accept that she had asked the toddler on a few occasions to pick up the sandwich and that when he did not she held him by the arm and directed him back to the area where the sandwich had been dropped. It cannot be discerned from watching the footage alone whether the Applicant’s grip of the toddler’s upper arm was rough. That the toddler does not appear to show any visible signs of distress and immediately proceeds to pick up the sandwich and to eat it, suggests that it was not. The footage does not disclose any conduct that is out of the ordinary. The Respondent led no evidence which would suggest that it was. The Respondent’s suggestion that the Applicant acted out of frustration was rejected and the Applicant maintained that she was teaching the toddler, presumably to follow instructions. The conduct disclosed by the video footage seems to me to be consistent with that evidence. The conduct is not misconduct, nor does it appear to be out of the ordinary.
[45] In footage three (3) the Applicant is seated on a toddler’s chair with her back to the camera and it appears that she is applying sunscreen to a female toddler’s face. At:
• 22 seconds, the Applicant can be seen looking down towards the female toddler’s feet;
• in the background, a male toddler can be seen attempting to climb onto a benchtop, after he successfully does so, he jumps down from the bench and runs towards another toddler wearing a hat. The frontal interaction between the two is obscured, but the toddler in the hat appears to react negatively;
• at 28 seconds the Applicant takes hold of the male toddler by his upper left arm and appears to swing him around approximately 180 degrees, with some speed. She takes hold of both of his hands and guides him down, with some downward pressure, where he sits on the floor;
• at 36 seconds the male toddler attempts to move away. The Applicant attempts to prevent him from leaving the area by taking hold of his lower right leg and pulls him closer to her;
• at 42 seconds the male toddler tries to move away;
• at 44 seconds the Applicant attempts to restrain the toddler by taking hold of the toddler’s t-shirt but as soon as the Applicant releases her grip on his t-shirt, he moves away;
• at 52 seconds the Applicant’s shoulders rise and fall.
[46] As to the conduct visible in footage three, the Applicant says that the male toddler involved had spat in the face of the hat wearing toddler. The Applicant says that consistent with the Respondent’s usual practice, she immediately stood up and turned the boy towards her so that she had his attention and told him not to spit on other people. The Applicant says that she then sat him down next to her as a way of showing him that his behaviour was very serious. The Applicant maintains that the toddler was not harmed or distress in any way and that whilst Ms Stanley cannot be seen on the video, she was in the room during the entire incident and did not comment on my behaviour, either at the time of the incident or afterwards. The Applicant says that Ms Stanley also did not report the behaviour to management. 46 She says that she felt stressed and under pressure because she was in the middle of trying to put sunscreen on all of the children and organise them to go outside and that in addition, she was emotional and exhausted at the time as a result of her pregnancy.47
[47] The Respondent maintains that the Applicant could not have seen that the male toddler spat in the face of the toddler wearing the hat as she was at the time applying sunscreen to the female toddler’s foot. 48 The Applicant maintains that she could still see what had happened out of the corner of her eye.49 During on cross-examination the Respondent put to the Applicant that the force she used when she swung the toddler 180 degrees was excessive.50 The Applicant said that the toddler is very light and that in the footage it appears that she used excessive force but maintains that she did not.51 The Applicant concedes that she could have dealt with the male toddler who spat in the face of the other toddler in a “better way”.52 The Applicant maintained that she was trying to teach the toddler that his behaviour was not appropriate.53
[48] It bears repeating that the Team Leader was not called to given evidence by the Respondent. I accept the Applicant’s evidence about the interaction between the two toddlers. Her evidence that the first toddler spat at the second toddler appears to me to be consistent with the reaction of the second toddler immediately before the Applicant intervened. That said the methods used by the Applicant to swing the offending toddler around and to restrain him by pulling at his leg were not appropriate. Much like the sunscreen incident, the grabbing and pulling at the toddler after the Applicant seated the toddler next to her occurred only because the Applicant remained seated. Had she stood up and moved towards the toddler, the Applicant could have picked him up and placed him back in the spot where she wanted him to sit. This would have been a much more sensible approach to have taken. The Applicant should justifiably have been counselled and warned about that conduct and if necessary receive training about how better to deal with the circumstances that she faced. The conduct disclosed is unprofessional, however is not of the magnitude to which the Respondent has sought to elevate it. The conduct is not by itself, nor in combination with the conduct earlier described, serious misconduct.
Events following the conduct captured on the CCTV footage
[49] It is not in dispute that after Ms Tyrer reviewed the CCTV footage she contacted AMIGA Group’s Area Manager, Sinead O’Connor, who then made contact with HR Wall Street’s Managing Director, Ms Leah Akoka. Ms Akoka’s evidence is that Ms O’Connor was very concerned and wanted advice. Her evidence is that Ms O’Connor emailed the footage to her and that she then discussed the matter over the telephone with Ms O’Connor, Ms Tyrer and the COO of the Respondent.. 54 Her evidence was that everyone agreed that the Applicant’s behaviour was inexcusable and constituted gross misconduct.55 No other participant in the discussion was called to give evidence. It is not in dispute that the surrounding circumstances of the footage were not taken into account56save for the Applicant’s complaint that she was feeling unwell and wanted to go home and her requests to be transferred to another room.57 Plainly, this was not possible since, no one saw fit to speak with the Applicant before any further step was taken. No one saw fit to speak with the other carer present in the room and visible in various parts of the CCTV footage. The Applicant put to Ms Akoka that there were numerous other factors that the Respondent should have taken into account before determining to dismiss the Applicant.58 However, Ms Akoka’s evidence was that “there is absolutely no excuse for handling children in this manner. Absolutely no excuse, so nothing she could have said would make it okay for handling these children in this manner.”59 Ms Akoka maintains that the course the Respondent took to dismiss the Applicant was an acceptable course.60
[50] It is not in dispute that prior to the Applicant’s dismissal, Ms Akoka had not reviewed the Employee Handbook and did not know that the Employee Handbook applied to the Applicant’s employment with the Respondent. 61 The Employee Handbook was a guide for employees about their obligations and entitlements and provided employees with comprehensive information about the workplace requirements and policies. The Employee Handbook is said to form part of the Applicant’s contract of employment.62 The Applicant put to Ms Akoka that the Employee Handbook should have been consulted prior to the Applicant’s dismissal. Ms Akoka’s evidence is that the Employee Handbook is “totally irrelevant”.63 How one can form that view, without consulting the Handbook, frankly escapes me.
Consideration and application of the statutory framework
Protection from Unfair Dismissal
[51] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.
[52] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[53] There is no dispute, and I am satisfied, that the Applicant was, on 25 January 2018, protected from unfair dismissal within the meaning of s.382.
Was the dismissal unfair?
[54] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out in s.385 of the Act existed. Section 385 provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC 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.”
[55] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act. As I have previously indicated, the Respondent is not a small business employer so the issue of compliance with the Small Business Fair Dismissal Code does not arise, and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.
Harsh, unjust or unreasonable
[56] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:
“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.”
[57] I am obliged to consider each of these matters in reaching my conclusion. 64 Each matter must be taken into account and given appropriate weight, and I do so below, having regard to the factual findings earlier made and taking into account the submissions filed by the parties.
[58] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 65 by McHugh and Gummow JJ as follows:
“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 66
[59] Ultimately, it is the matters set out in s.387 of the Act to which regard must be had.
Valid reason – s.387(a)
[60] There must have been a valid reason for the dismissal relating to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 67 The reason should be “sound, defensible or well-founded”68 and should not be “capricious, fanciful, spiteful or prejudiced”.69 Where conduct of the Applicant is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged, occurred.70 A mere suspicion of conduct does not amount to a valid reason.71
[61] The reason for the Applicant’s dismissal related to her conduct. Though the Applicant suggests that the CCTV footage suggests performance rather than conduct that is in issue, I consider that which the CCTV footage depicts relates to conduct rather than performance. However, I accept that there may be some overlap. The Respondent has maintained that the conduct was serious misconduct warranting summary dismissal. This submission must be rejected in light of the finding earlier made.
[62] The Applicant says that even if her conduct involved behaviour falling short of best practice, and could have been handled more appropriately, it was not a serious breach of workplace safety. She says that it did not place a child in serious harm, nor did it involve serious or deliberate misconduct. She says it did not involve gross negligence, malingering or neglect of duty, nor did it involve striking or hitting another person on the company's premises. The Applicant says that despite her admission that some of the conduct may have been unreasonable, she maintains that it was not behaviour that caused serious and imminent risk to health and safety or serious and imminent risk to reputation, viability or profitability of the business. I accept these submissions.
[63] As I have indicated above, the conduct disclosed in each of the footages is not of the magnitude to which the Respondent has sought to elevate the conduct. It is conduct that discloses less than optimal, and certainly unprofessional, practice. Footage two (2) shows no conduct that is out of the ordinary, unprofessional or unacceptable. Whether there was pushing of a toddler in footage one (1) is, as I have already indicated, absent any other evidence, a matter about which I cannot be satisfied. The conduct that is left as disclosed in footage one and footage three (3), warranted counselling, a warning and further training or instruction. It did not constitute misconduct. It certainly did not constitute serious misconduct. It was not conduct that fell within any one of the descriptions of serious misconduct set out in the Employee Handbook.
[64] As I have already observed, the conduct was unprofessional and the result was a delivery of less than optimal and perhaps even substandard care to the toddlers involved in the two incidents. That said, the conduct would likely not be repeated with appropriate counselling and disciplinary action as envisaged by the Employee Handbook together with further training or instruction. The conduct disclosed by the CCTV footage in which the Applicant engaged was not inconsistent with the continuation of the employment relationship.
[65] Contrary to the Respondent’s contention, continuing the employment relationship was not inconsistent with any duty of care the Respondent owed to the children. That duty will have been discharged by taking the steps that I consider ought to have been taken in the circumstances and perhaps to review and monitor the Applicant more closely. It might also consider reviewing the centre’s practices more generally and to conduct further general training about appropriate physical interactions with children in the care of the centre. In these circumstances it cannot be said that the conduct provided a sound, defensible or well-founded reason for the Applicant’s dismissal. As I have already concluded, the conduct was neither misconduct or serious misconduct. The reason for dismissal was therefore not a valid reason related to the Applicant’s conduct or capacity. No other reason for dismissal was advanced by the Respondent. No other reason is disclosed from the evidence before me. The absence of a valid reason weighs in favour of a conclusion that the dismissal was unfair.
Notification of the valid reason – s.387(b)
[66] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 72 in explicit terms,73 and in plain and clear terms.74 In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport),75a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 76
[67] There is no dispute, and I am satisfied that the Applicant was notified of the Respondent’s reason for dismissing her, at least in a general sense. This notification occurred during the meeting of 25 January 2018 and was confirmed in correspondence subsequently sent to the Applicant by email later that day. However, the Applicant was not shown the CCTV footage which underpinned the reason for the Applicant’s dismissal despite numerous requests. The Respondent accepts in hindsight the Applicant should have been shown the CCTV footage 77 but maintains that the Applicant’s conduct outweighs the failure to accord the Applicant procedural fairness.78 I do not agree.
[68] Notification of the reason provides the foundation for the opportunity to respond to the reason for dismissal. Notification of the reason for dismissal as “gross misconduct” based on undisclosed CCTV footage is insufficient to constitute notification of the reason in the circumstances. The reason was inextricably linked to the CCTV footage. A failure to disclose the CCTV footage despite requests from the Applicant means that the reason, other than in a general uninformative way, was not disclosed and therefore there was no notification. The absence of notification of the reason for the dismissal weighs in favour of the conclusion that the dismissal was unfair.
Opportunity to respond – s.387(c)
[69] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. It seems to me clear on the evidence to which earlier reference has been made, and it is not in contest that the Applicant was not given an opportunity to respond to the reasons for her dismissal. The Applicant was called to a meeting held on 25 January 2018 about which she was given no information.
[70] At the meeting, the Applicant was only told that she was terminated with immediate effect because she had committed “gross misconduct”. The Applicant requested an explanation and was told that the Respondent had CCTV footage to support its decision to dismiss the Applicant. Despite the Applicant’s requests to view the footage, she was denied the opportunity and in fact was only provided with the footage as part of the Respondent’s submission after the Applicant lodged her application for an unfair dismissal remedy. Had the Applicant been shown the CCTV footage she could have, as she has done in her evidence, explained some important contextual matters. This would have given the Respondent the opportunity to consider the explanation and perhaps to further investigate the circumstances. This might have included, for example, speaking with the parent of the child involved in the sunscreen incident and speaking with the Team Leader present in the room and visible in the footage. It would have given the Respondent the opportunity to consider action short of dismissal, such as a warning. It would have given the Respondent an opportunity to consider whether counselling, further training or instruction was needed. The lack of any opportunity to respond, coupled with the haste with which the Respondent acted, lead to the result in which the Respondent now finds itself.
[71] The opportunity to respond is not just a protective mechanism for an employee facing the prospect of a dismissal, it is a protective mechanism for an employer to avoid acting rashly, with undue haste, unreasonably or harshly.
[72] That the Applicant was not given an opportunity to respond in the circumstances, is to weigh in favour of a conclusion that the dismissal was unfair.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[73] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the plain language of s.387(d) of the Act that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, this section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 79 It may well be appropriate, in some cases, to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.
[74] There is no dispute that the Applicant did not have a support person with her at the meeting held on 25 January 2018. However, the Applicant had little opportunity to consider whether she should bring a support person to the meeting. The Applicant did not request a support person. The Applicant was given no advance notice of the meeting, and was given no indication of the serious nature of the meeting.
[75] Although I consider that there was no denial of a support person, so I weigh this consideration neutrally, the circumstances in which the meeting was called had the real effect of denying the Applicant the opportunity to consider whether to bring a support person. This is a factor that I consider relevant and will take into account under s.387(h) as weighing in favour of a conclusion that the Applicant’s dismissal was unfair.
Warnings regarding unsatisfactory performance – s.387(e)
[76] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 80 As indicated above, I consider the Applicant was dismissed for conduct and not performance, although as I have indicated, the concepts overlap. In the circumstances of this case, the consideration of warnings for unsatisfactory performance does not arise.
Impact of the size of the Respondent on procedures followed – s.387(f)
[77] The Respondent is a medium sized employer. There is no evidence that the Respondent’s size, in and of itself, affected the procedure adopted in effecting the dismissal.
Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
[78] The Respondent engages an external human resources provider to provide human resources services. That provider is said to have over 20 years’ experience in human resources, sales and recruitment. Wall Street sees itself as a “virtual extension” of its clients and “Amiga Montessori Centre and Wall Street have a very close relationship and their collective goals are the same. 81 The Respondent had and utilised the services of specialist human resources management. On the evidence, that provider appears to have directed the procedure in effecting the dismissal. The procedure adopted was to view the CCTV footage, hold a meeting with various senior employees of the Respondent to discuss the conduct captured by the CCTV footage, to decide based on the CCTV footage that the Applicant ought be summarily dismissed, to call the Applicant to a meeting, to tell the Applicant that she was dismissed summarily based on the conduct disclosed in CCTV footage and to deny the Applicant any opportunity to view the CCTV footage and therefore to respond to the reason for dismissal. No investigation was undertaken, the Employee Handbook was not consulted, no person who might shed light on the conduct was spoken to despite the Team Leader being clearly visible in much of the footage and the Applicant was not asked to explain what could be seen in the footage. No other option was considered. The procedure adopted was poor to say the least and the Respondent was not well served by the specialist advice it received. As there was no absence of a human resources expertise, this is not a matter that can weigh in favour of the Respondent.
Other relevant matters – s.387(h)
[79] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant. I consider the following matters to be relevant and have also taken these into account:
a) The Applicant’s disciplinary history. It is not in contest the Applicant had not received any oral or written warnings, nor had she otherwise been counselled in relation to the care that she provided to children.
b) The Applicant’s work record. There is no suggestion that the Applicant was anything other than good at her job. Her performance was not put in issue. It is the Applicant’s conduct which is at the heart of this case;
c) The proportionality of the response (summary dismissal) to the conduct in which the Applicant engaged. The conduct engaged in, was not misconduct and the dismissal, particularly the summary nature of it, was in my view, a disproportionate response;
d) Opportunity to have a support person. As indicated above, the Applicant was unable to consider whether to have a support person present because she was given no advance notice of the meeting, and was given no indication of the serious nature of the meeting.
e) The absence of any investigation and the poor procedure adopted by the Respondent (as evidenced through the only witness who gave evidence) in coming to the decision to dismiss.
f) The failure to consult the Employee Handbook and therefore to consider whether the conduct fell within any of the enumerated descriptions of conduct which may lead to summary dismissal.
[80] Each of these matters weighs in favour of a conclusion that the dismissal was unfair. The matters in (a) – (c) go to the question whether the dismissal was a disproportionate response and weigh in favour of a conclusion that the dismissal was harsh. The matters in (d) – (f) speak to the issue of unreasonableness and weigh in favour of a conclusion that the dismissal was unreasonable.
[81] Taking all of these matters into account and for the reasons given in this decision, I have come to the conclusion that the Applicant’s dismissal was harsh, unjust and unreasonable. It is unjust because the conduct was not misconduct, and so the Applicant did not engage in serious misconduct. That the Respondent acted on the CCTV footage alone and therefore drew unreasonable conclusions renders the dismissal unreasonable. Lastly, it is harsh because the dismissal was a disproportionate response to the conduct in which the Applicant engaged.
[82] In all the circumstances the dismissal of the Applicant was unfair.
Conclusion
[83] For the reasons I have given above, the Applicant was unfairly dismissed by the Respondent.
[84] I now need to consider the remedy, if any, that should be ordered in the circumstances. The parties are requested to confer on the directions that should be made to progress the application to hearing in order that remedy can be determined and file in my chambers by 5.00pm on Friday 15 June 2018, a document setting out consent directions, or in the absence of consent, a document or documents setting out the respective positions of the parties in relation to directions that should be made. I will thereafter fix a further hearing date. The parties are also encouraged to confer on the question of remedy and to explore the possibility of reaching a consensus without the need for a further hearing. A member assisted conciliation conference can be arranged to assist the parties if the parties wish to participate in such a conference.
DEPUTY PRESIDENT
Appearances:
Ms R Preston, Counsel for the Applicant.
Mr S Kelly, Counsel for the Respondent.
Hearing details:
2018.
Melbourne.
21 May.
Printed by authority of the Commonwealth Government Printer
<PR607318>
1 Exhibit 1 at Annexure 4
2 Section 396 of the Fair Work Act 2009
3 Exhibit 1 at [2]
4 Ibid
5 Ibid at [4].
6 Ibid at Annexure 4
7 Ibid.
8 Ibid at [31].
9 Ibid at [32].
10 Ibid at [36].
11 Ibid at [37].
12 Applicant’s Outline of Submissions dated 10 April 2018 at [3].
13 PN99.
14 Respondent’s Outline of Submissions at [4], these submissions were handed to me prior to the Respondent’s closing submissions.
15 Ibid.
16 Exhibit 1 at [7].
17 Ibid.
18 Ibid at [8].
19 Ibid.
20 Exhibit 1, Annexure 3 page 9.
21 Ibid.
22 Ibid at page 14.
23 Ibid at page 19.
24 Ibid at page 28.
25 Ibid at page 30.
26 Ibid at page 32.
27 Ibid at page 33.
28 Ibid.
29 Exhibit 1 at [16].
30 Ibid.
31 Ibid at [20].
32 Exhibit 1 at [23].
33 Ibid at [24].
34 Ibid at [25].
35 Ibid at [26].
36 PN158 – PN160.
37 Exhibit 1 at [40].
38 Ibid at [41].
39 Ibid.
40 PN157 - PN177.
41 PN182.
42 PN186.
43 Exhibit 1 at [42].
44 Ibid at [43].
45 PN188.
46 Exhibit 1 at [44] – [46].
47 Ibid at [47]- [48].
48 PN126.
49 PN127.
50 PN131.
51 Ibid.
52 PN140.
53 PN149.
54 PN228.
55 Exhibit 2 at [15] – [16], PN228.
56 PN448 – PN467.
57 PN468.
58 See for example PN432 – PN467, PN470 – PN472.
59 PN472.
60 PN473.
61 PN351.
62 Exhibit 1, Annexure 3 page 3.
63 PN353.
64 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14].
65 (1995) 185 CLR 410.
66 Ibid at 465.
67 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378.
68 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
69 Ibid.
70 King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213) at [23]–[26].
71 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
72 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
73 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at 150–151.
74 Previsic v Australian Quarantine Inspection Services Print Q3730.
75 (2000) 98 IR 137.
76 Ibid at 151.
77 PN240.
78 PN671.
79 See also Fair Work Bill 2008 – Explanatory Memorandum at [1542].
80 Annetta v Ansett Australia (2000) 98 IR 233 at 237.
81 Exhibit 1, Annexure 2 page 4.
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