Rachel Turner v GoodStart Childcare Limited

[2012] FWA 8074

Note: An appeal pursuant to s.604 (C2012/5705) was lodged against this decision - refer to Full Bench decision dated 12 December 2012 [[2012] FWAFB 10463] for result of appeal.

[2012] FWA 8074

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachel Turner
v
GoodStart Childcare Limited
(U2011/1782)

COMMISSIONER WILLIAMS PERTH, 27 SEPTEMBER 2012

Termination of employment.

[1] This matter involves an application made by Mrs Rachel Turner (Mrs Turner or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent employer is GoodStart Childcare Limited (Goodstart or the respondent).

[2] The application was the subject of a conciliation conference with a Fair Work Australia Conciliator however the matter was not settled and has been referred to myself for determination.

Background

[3] Goodstart is a large not for profit provider of early child education services throughout Australia. In Western Australia, Goodstart has 53 child care centres and over 800 employees. Goodstart’s child care centres are required to be individually licensed 1 under the Child Care Services Act 2007 (the CCSA).

[4] Mrs Turner commenced employment with Goodstart in May 2010 as the Centre Director for the respondent’s Armadale Centre 2.

[5] The Centre Director has the responsibility for the delivery of service and oversees all aspects of the centre, children, staff members and parents. Additionally, Mrs Turner was the Supervising Officer for the Armadale Centre in accordance with regulation 11 of the Child Care Services (Child Care) Regulations 2006 (the CCS (CS) R) 3.

[6] Centre Directors are supervised by an Area Manager, in this instance Ms Yasman Standfield. In the early part of the applicant’s employment Ms Standfield visited Mrs Turner at the Armadale Centre weekly. Later in the applicant’s employment Ms Standfield would see Mrs Turner at the Centre Director meetings which were held monthly. Mrs Turner and Ms Standfield would have regular contact during the week with respect to the running of the Armadale Centre by email. Centre Directors have a large degree of autonomy and day to day work without oversight so retaining a high level of trust and confidence in them is necessary.

[7] On 21 February 2011 an incident occurred in the kindergarten room at the Armadale Centre where a child, whom will be identified as “F.S.”, was placed in a rocker and onto a bench whilst the floor was being mopped. Having been accidentally bumped by a staff member the child fell to the ground and struck her head. After this incident, the three staff members who witnessed the incident namely, Ms Greenway, Ms D’Vauz and Ms Bell together gave a false explanation as to how the incident occurred. An incident report was prepared by Ms Greenway which reflected the false explanation.

[8] Mrs Turner was not present at the Armadale Centre at the time of the incident but was made aware of the false explanation the same day when a member of her staff rang her.

[9] In July 2011 Ms Bell’s mother contacted Goodstart and advised of the true circumstances surrounding the incident. This was the first time the respondent’s senior management had became aware of the true explanation regarding F.S.’s fall.

[10] An investigation was undertaken during which Ms Bell alleged that she had told the applicant about the false report made by the staff approximately a month after the incident had occurred.

[11] Subsequently Goodstart conducted an investigation into the applicant’s knowledge and handling of the incident at the time it occurred and following Ms Bell’s conversation with her some weeks later about the false staff report.

[12] In addition Goodstart conducted separate investigations into the actions of Mrs Turner on 21 June 2011. This involved allegations to do with working without a medical clearance contrary to Ms Standfield’s direction and inappropriately sharing confidential information with others.

[13] Following interviews and show cause letters, Mrs Turner was ultimately terminated on 22 August 2011. Her letter of termination is set out below:

“Dear Rachel

RE: TERMINATION OF EMPLOYMENT - SERIOUS MISCONDUCT

Following the recent outcomes of three separate investigations into your conduct as the Centre Director of ABC Armadale it has been found that you have:

• failed to display and provide leadership that reflect the values of ABC Goodstart,



• breached the Code of Conduct



• breached confidentiality



• failed to comply with policies and procedures



• failed to carry out a reasonable and lawful instruction that was consistent with your contract of employment




I confirm that the following allegations were put to you and you were provided with the opportunity to respond as part of the investigation, on three separate occasions, 1 July 2011, 3 August 2011 and 8 August 2011.

• It is alleged that on the 21 June 2011 you shared confidential information with the Centre Cook, which was witnessed by other employees.



• It is alleged that you attended the workplace on 21 June 2011 when you were medically unfit to be at work.



• It is alleged that on the 21st Feb 2011, “F.S.” was placed in a rocker and onto the Sign In bench whilst the floor was being mopped and fell onto the floor. A staff member knocked the rocker and the child fell to the ground.



• It is alleged an incident report was written with the incorrect information and the parent was misinformed regarding the correct information about how the incident occurred.



• It is alleged Laura Greenway, Latara D’Vauz and Demmielle Bell collaborated a story in regards to how the incident occurred which was not an accurate reflection.



• It is alleged a month after the alleged incident Demmielle Bell informed you of the Incident and you failed to report it to CIT and to management.



• It is alleged that you failed to follow correct procedure for documentation by way of failure to complete Incident Report documentation and/or the record keeping of the documents below. These documents were found in the In-Tray in the Centre Directors Office on the 21/7/2011.




Incident Report Forms dated:

30/9/2010 — incomplete

19/10/2010 — incomplete

25/10/2010 — incomplete

27/10/2010 — incomplete

17/9/2010 — incomplete

17/9/2010 — incomplete

27/10/2010 — incomplete

5/8/2010 — incomplete

27/8/2010 — incomplete

• It is alleged that you failed to ensure that the correct procedure was followed in the programming for the 4-5 year old room on the 5/7/2011.



• It is alleged that you failed to correctly orientate David Scheltema to the Centre. Failure to complete the relevant documentation to ensure correct record keeping of the orientation of a student to the Centre.



• It is alleged that you failed to ensure the following of the correct procedure in allowing an unsupervised student to change a nappy on the 5/7/2011.



• It is alleged that you failed to follow a directive by your line manager Ms Standfield to address the breaches documented by the National Childcare Accreditation Council on the 5/7/2011 before your annual leave on the 8/7/2011.




We have considered your responses carefully and find that the majority of the allegations have been substantiated.

I further confirm that you were offered the opportunity to have someone attend the meeting with you and you were able to seek their support in this process.

We advise that your written response was considered as part of the decision process however your response was neither reasonable nor sufficient. We wish to advise you that the matter is considered serious misconduct and a serious breach of company policies and therefore a breach of your employment terms.

As such, I must advise you that you are summarily dismissed and therefore your employment is hereby terminated effective immediately with no entitlement to notice.

All statutory entitlements, including your pay up to and including 22 August 2011 shall be paid to your previously nominated bank account within three working days of your termination date.

Should you require a separation certificate and/or statement of service please advise me.

Yours sincerely

Cimlie Bowden

HR Manager”

[14] At the hearing of this application evidence was given by the applicant, Mrs Turner and also by Ms Standfield, Ms Bowden and Ms Bell.

The applicant’s submissions

[15] It is submitted that there was not a valid reason for the termination as the respondent relies upon serious misconduct to justify the valid reason whereas it will be established that Goodstart’s allegations are totally unsubstantiated and wholly without merit.

[16] The applicant made no admission to the allegations of misconduct quite the opposite, the applicant provided well informed responses where permitted to and Goodstart, for whatever reason, elected to ignore Mrs Turner’s responses and continued to persist with the allegations and add to them as well.

[17] It is submitted that in all circumstances the respondent did not and cannot show that it had a sound, defensible and well-founded reason for the termination of Mrs Turner’s employment based on the allegations of misconduct.

[18] The applicant submits that at all times throughout the whole of her employment with Goodstart she acted with the implied duty of fidelity and in good faith and that her behaviour at all times was consistent with the implied duty, it never caused serious or imminent risk to the reputation, viability or profitability of the respondent’s business.

[19] The applicant submits there was no conduct on her part that amounted to conduct which was repugnant to the relationship of employer – employee.

[20] The applicant’s dismissal on the ground of serious misconduct in all the circumstances was not a valid reason as there was not misconduct or poor performance by the applicant.

[21] The law is well established and clear on factors that are to be considered in cases of serious misconduct. These factors are:

• Was the employee’s conduct of such a nature that it repudiated (rejected) the contract or the essential obligations of the employment contract? The misconduct must be substantial.



• Was the employee’s conduct of such a nature that it demonstrated an intention not to be bound by the contract in the future? Again, the misconduct must be substantial.



• Has the employee deliberately flouted essential conditions of the contract of employment?



• Was there an element of wilfulness in the employee’s disobedience?



• Was the misconduct an isolated event? Isolated conduct is usually insufficient.

[22] The applicant submits that there is an evidential onus upon the employer to prove that summary dismissal is justified.

[23] The question of whether a person is guilty of behaviour serious enough to justify summary dismissal is essentially a question of fact and degree.

[24] The question before the Tribunal is whether the conduct alleged to have occurred amounted to serious misconduct or the applicant was dismissed from her employment in circumstances that were harsh unjust and unreasonable.

[25] The applicant submits that in relation to the F.S. fall incident Goodstart had previously addressed this matter at the time and there was no warning given to the applicant. The matter was not deemed at the time to amount to serious misconduct.

[26] It is submitted that at the time the matter was addressed in February 2011 Goodstart had full knowledge of the alleged misconduct and elected not to cite the applicant for serious misconduct or terminate her employment.

[27] It is the applicant’s submission that the respondent had forfeited its right to dismiss the applicant.

[28] One of the allegations made against the applicant is that she failed to obey a reasonable and lawful “instruction” given to her by the Area Manager.

[29] In this case, it is submitted that the order given by the Area Manager to the applicant was not reasonable in the circumstances.

[30] The issue of failing to comply with or carry out a lawful and reasonable order was clearly addressed by the applicant in the correspondence dated 8 August 2011.

[31] The applicant’s Area Manager was advised in an email from Goodstart’s Acting Regional Manager of the policies and procedures for performance managing casual employees.

[32] The applicant viewed the email from the Acting Regional Manager as a lawful and reasonable order because it was clear what the policies and procedures were.

[33] The applicant submits that the email/order from the Acting Regional Manager overruled the alleged lawful and reasonable order of the Area Manager in that it related directly to the policies and procedures and came from a person with a higher authority than the Area Manager.

[34] It is submitted that the respondent has failed to show the order reasonable.

[35] Notification for the reason for termination must be made prior to the employee being terminated.

[36] Whether an employee was given an opportunity to respond to any reason related to the conduct of the employee in accordance with section 387(c) of the Act is a question of fact.

[37] The applicant had a right to a full and fair opportunity to be heard in order to be accorded procedural fairness.In this case the applicant was given little time to respond to the allegations or the allegations against her were changed or added to. The applicant was not given any real opportunity to respond to the allegations made against her as is the clearly shown in relation to the show cause letter being followed by the letter of termination.

[38] The decision to dismiss the applicant was made prior to the applicant being allowed any real opportunity to provide a full informed response to allegations set out in the show cause letter.

[39] The respondent’s show case letter dated 17 August 2011 infers that the respodent’s mind set was to terminate the applicant’s employment.

[40] Goodstart then provides the applicant with a reasonable time frame to make a well informed response, 5 September 2011. But then on 22 August 2011 being three working days after sending the applicant the show cause letter the respondent drafted the letter of termination thereby denying the applicant procedural fairness.

[41] In July 2011 whilst on annual leave the applicant was stood down but no reason for the stand down was ever provided to Mrs Turner by the respondent.

[42] The applicant submits that the evidence shows that Goodstart denied Mrs Turner procedural fairness/due process in a number of areas and that the above discussed areas are just examples of the denial of procedural fairness.

[43] Goodstart claims that the applicant’s performance was unsatisfactory and that it contributed toward the decision to terminate the employment relationship. The applicant submits that the respondent is wrong in suggesting or making the inference that her performance was substandard as Mrs Turner was clearly paid her bonus payments to which she was entitled for achieving and maintaining her KPI’s. On no occasion whatsoever prior to the commencement of Goodstart’s multiple allegations and notices of meetings did the respondent advise the applicant that her performance was considered to be substandard.

[44] Extensive submissions were made on behalf of the applicant addressing the evidence of each witness and arguing for particular conclusions and findings that the Tribunal should draw or make as a consequence. It is not necessary to set out all of these submissions here.

The respondent’s submissions

[45] The primary legislative instrument which governs childcare in Australia is the CCSA.

[46] Section 6 of the CCSA provides:

“A person or body with functions under this Act must, in the performance of those functions, regard the best interests of children as the paramount consideration.”

[47] Section 7 of the CCSA relevantly provides:

“In the administration of this Act the following principles must be observed —

(a) the principle that a child care service should be provided to a child in a way that —

(i) protects the child from harm; and...

(iii) safeguards and promotes the child's wellbeing; and…”

[48] The applicant was registered as the Supervising Officer (being the person with legal responsibility for “day-to-day supervision and control” of the Armadale Centre) pursuant to the CCSA. Accordingly, in performance of her role as Supervising Officer, the applicant was required at all material times to comply with section 6 of the CCSA (set out above). The applicant remained the Supervising Officer whether or not she was physically present at the Armadale Centre.

[49] The applicant, as Supervising Officer, was responsible, amongst other things for ensuring, on a day to day basis, that the conditions of the License granted with respect to the Armadale Centre were complied with.

[50] The respondent is the Licensee for the purposes of the CCSA and its role as Licensee is, amongst other things, to comply with section 6 of the CCSA. The respondent must ensure that the conditions of the License are met and that nothing occurs which constitutes or would constitute an unacceptable risk to the wellbeing of the children for whom the service, pursuant to the License, is provided.

[51] The Respondent must, within 24 hours of the occurrence, pursuant to regulation 20 of the CCS (CS) R notify the relevant authority of:

“an injury to an enrolled child during a care session that results in the child being admitted to a hospital, the nature of the injury and the circumstances in which it occurred.”

[52] The respondent must, pursuant to regulation 69(1) of the CCS (CS) R:

“…ensure that a record is kept of —

(a) any injury to or accident involving an enrolled child during a care session, including details of the nature and circumstances of the injury or accident;…”

and must maintain confidentiality over those records (regulation 74 of the CCS (CS) R).

[53] Mrs Turner’s employment was governed by written policies implemented by the respondent. These are provided in the evidence of Ms Cimlie Bowden and Ms Yasman Standfield for the respondent and generally acknowledged by the applicant.

[54] The contents of the written policies referred to are largely guided by the legislative requirements referred to above, particularly section 6 of the CCSA and Goodstart’s own guiding principles.

[55] The respondent’s position is:

a. The failure of the applicant to report Ms Bell’s allegation of a false incident report, in itself, constituted serious misconduct and merited summary dismissal as:

i. It was contrary to her obligations as Supervising Officer;

ii. It was contrary to the Goodstart’s own policies and procedures;

iii. Her failure to report the allegations placed the health of child under the respondent’s care at serious and imminent risk, and also the respondent’s reputation at serious and imminent risk.

b. If, contrary to the respondent’s submission, the applicant’s failure to report Ms Bell’s allegations did not warrant summary dismissal that conduct, combined with her other conduct, warranted summary dismissal.

c. The applicant was given a reasonable opportunity to respond to the allegations made against her and those responses were taken into account prior to making the decision to terminate her employment.

Reasons for Dismissal

[56] The respondent’s reasons for dismissing Mrs Turner at the time were that Mrs Turner:

• shared confidential information with the Cook at the Armadale Centre.



• attended the Armadale Centre when certified as medically unfit to do so and in spite of a previous lawful and reasonable direction not to do so.



• failed to report the true circumstances of F.S.’s fall to the Critical Incident Team (CIT) or management.



• failed to follow policy with respect to completing incident report documentation and record keeping. A number of incomplete incident reports in excess of 9 months old were found on 21 July 2011.



• failed to ensure correct procedure was followed in programming the 4-5 year old room at the Armadale Centre on 5 July 2011.



• failed to correctly orientate a work experience student to the Armadale Centre or complete the relevant documentation. Permitted an unsupervised student to change a nappy on 5 July 2011 (in breach of policy).

• failed to comply with a reasonable and lawful directive to address breaches which had been documented by the National Childcare Accreditation Council on 5 July 2011 before leaving for annual leave on 8 July 2011.

[57] It is submitted that the primary reasons for the applicant’s dismissal are related to the incident of 21 February 2011 (and were in themselves grounds for termination of the applicant’s employment) and include:

a. The applicant’s failure to take appropriate steps with respect to the incident which was understood to have occurred to F.S. when she was first aware of it around 21 February 2011.

b. The applicant’s failure, upon being approached by Ms Demmielle Bell some time later, to take any steps to follow up, report or otherwise respond appropriately to Ms Bell’s allegations.

[58] It is the respondent’s secondary position that, if Fair Work Australia considers the matters in a. and b. above to be insufficient to warrant dismissal, the matters identified as the respondent’s reasons for dismissing Mrs Turner at the time were cumulatively sufficient to warrant dismissal.

Opportunity to Respond

[59] It is the respondent’s position that Mrs Turner was provided with the opportunity to respond, both orally and in writing, to the various allegations made against her. She had sufficient notice and time to consider each of the allegations and sufficient particularisation of those allegations to be able to understand and respond.

[60] Specifically it is submitted that:

a. The applicant was informed, in writing of the allegations against her with respect to F.S. on 14 July 2011. 4

b. The applicant provided a written response to the allegations against her, dated 2 August 2011. 5

c. The applicant had the opportunity to respond to the allegations against her with respect to F.S. orally and with assistance from her union advocate Tiffany Venning on 3 August 2011. 6

d. The applicant then forwarded, through Ms Venning, further information clarifying/explaining her comments in the meeting on 3 August 2011. 7

e. With respect to the allegations in relation to breaches of confidentiality/ attendance when unfit to do so, the applicant was provided with a notice of meeting setting out the allegations on or about 28 June 2011. 8

f. The applicant was then given the opportunity to respond to the allegations orally at a meeting on 1 July 2011. 9

g. With respect to the remainder of the allegations made against the applicant, the applicant was sent a letter dated 5 August 2011 setting out those allegations. 10

h. The applicant was given the opportunity to respond to those allegations, and did in fact respond, in writing, by letter from Tiffany Venning dated 8 July 2011. 11

i. The applicant’s employment was terminated by letter dated 22 August 2011 12 which explained the reasons for the dismissal.

Serious Misconduct

[61] The applicant was dismissed without notice for serious misconduct. This was correct because:

a. In spite of the applicant being aware of a potentially serious head injury to F.S. she failed to report the incident to CIT until directed to do so by Ms Standfield and even then only did so under protest.

b. In spite of being told some time later, in detail by Ms Bell of the true circumstances surrounding the fall (and in spite of her knowledge of F.S.’s injuries and hospitalisation) Mrs Turner did not:

i. investigate the allegations further herself; and/or

ii. report those allegations to senior management in accordance with Goodstart’s policies on reportable allegations.

c. Mrs Turner’s failure to report the allegations to senior management was both wilful behaviour inconsistent with the continuation of her employment, which was totally inconsistent with her duties as Supervising Officer under the CCSA and by extension totally inconsistent with the obligations of her role with the respondent as well as putting the respondent’s reputation at serious and imminent risk.

d. She failed to comply with a lawful and reasonable directive of Ms Standfield in relation to addressing breaches identified before going on annual leave.

e. The other misconduct identified (failing to orientate the work experience student, letting a student change a nappy unsupervised, failing to complete incident reports) provide further evidence of the basis upon which the respondent had a total loss of trust and confidence in an employee who, by her own admission, was required to exercise discretion on a daily basis and who had significant autonomy with respect to the running of the Armadale Centre.

[62] Further, it is submitted that the applicant has failed to:

a. accept any responsibility, or display any remorse, with respect to the incident whilst blaming her Area Manager and others for not taking responsibility for the applicant’s own actions (for example, Mrs Turner said that she didn’t think it was reasonable for Rebecca Miller even to notify her of the incident 13);

b. acknowledge, to any significant degree, any failings with respect to the way she responded to the incident, even in hindsight;

c. show any empathy, concern or real interest in F.S.’s wellbeing; or

d. act in a manner which suggests that the respondent could have had any degree of confidence that the applicant was a suitable person to run a childcare centre with responsibility for the wellbeing of children and infants.

Condonation

[63] There has been no condonation of the applicant’s misconduct for the following reasons.

[64] The respondent submits that it did not have full knowledge of the actions of the applicant amounting to misconduct in the period between 21 February 2011 and 25 February 2011. In particular the respondent did not have full knowledge of:

a. the applicant’s failure to advise her second in command to report the fall to the CIT;

b. the applicant’s failure to make inquiries, or undertake any follow up in relation to the health of F.S.; and

c. the applicant’s instruction to permit F.S. to sleep undisturbed in the knowledge that she had, or potentially had, sustained a head injury. Accordingly, the full knowledge requirement was not met in such a way as to invoke the doctrine of condonation.

[65] The respondent submits further that even if it were found to have condoned the misconduct, which is denied, the misconduct although condoned in the period between 21 February 2011 and 25 February 2011 can nevertheless be considered as relevant to the later acts of misconduct by the applicant.

[66] The actions of misconduct by the applicant between 21 February 2011 and 25 February 2011, and the subsequent misconduct of the applicant in March 2011 were all within a span of 12 months and were all relevant to her conduct surrounding the CIT incident. The earlier actions make up part of the continuing history of the applicant’s service in relation to this matter and were relevant factors to be weighed up by the respondent in determining that the further misconduct of the applicant was such as to justify her dismissal.

Comments on the applicant’s Case

[67] The applicant submits that the real reason for her dismissal was to cover up a “breach”, because if she was terminated she couldn’t be interviewed by Licensing.

[68] The applicant argues there was a breach pursuant to section 18 of the CCSA which was of Ms Standfield’s doing in moving Mrs Turner from Armadale Centre to Rockingham South on 21 February 2011.

[69] It is also argued that that both Ms Bowden and Ms Standfield were biased in their respective roles in the investigation and decision making process because:

a. Ms Bowden had both an investigative and decision making role with respect to the applicant.

b. Ms Standfield had a conflict of interest because of the alleged breach she caused.

[70] The applicant alleges that she was denied procedural fairness in that her employment was terminated before she had the opportunity to respond to a show cause letter sent by the respondent.

[71] The applicant alleges that Ms Venning was not her representative but was in fact her support person and accordingly any communication to Ms Venning of the termination of the applicant’s employment was invalid.

[72] In reply to these arguments the respondent says that in relation to Mrs Turner’s absence from the Armadale Centre on 21 February 2012 there was no breach of the CCS (CS) R.

[73] Regulation 22, it is submitted should be interpreted as follows:

a. A Supervising Officer (in this case the applicant) must be present at the Armadale Centre all times when the service is provided unless a reason specified in sub-regulation(1) of regulation 22 applies.

b. In any event, the applicant must be present for at least 25 hours (or 70 percent of the time for which the service is provided during a week) in any given week.

[74] Regulation 22 should, in the respondent’s submission, be interpreted as requiring a minimum level of supervision by a Supervising Officer during any week; but recognising that absences, for a number of reasons, will be unavoidable from time to time.

[75] It is submitted (and was accepted by Licensing) that the applicant’s absence (to attend as acting Centre Director for Rockingham South) was an “emergency situation” within the meaning of regulation 22 because:

a. the Licensee had a centre for which there was no Supervising Officer at all which it was required to run; and

b. until another Supervising Officer could be located the only reasonable source of Supervising Officers was other Centre Directors (who volunteered (including the applicant) to take turns being Acting Centre Director Rockingham South.

[76] In any event, there is no evidence, other than speculation by the applicant, that any fear, or otherwise, of a finding of a breach of regulation 22 existed (irrespective of the fact that the respondent (and Licensing) say there was no breach) or had any impact on the investigation or decision making process.

[77] In any event, simply because her employment was terminated would not preclude the applicant from being approached by Licensing.

[78] The true reasons for the applicant’s dismissal were, in fact, those reasons set out in the respondent’s evidence.

[79] It is submitted that, there is no reasonable basis upon which the applicant can claim that the mere fact of a person both playing a role in investigations and playing a role in decision-making with respect to those investigations can give rise to a perception of bias or actual bias.

[80] Even though the applicant did not respond to the show cause letter, she was given an opportunity to respond on multiple occasions both in writing and orally.

[81] Regarding Ms Venning, the evidence is that she had authority to receive communications from the respondent on behalf of the applicant and to send correspondence on behalf of the applicant regarding the investigations and issues raised by the respondent. 14

[82] It is submitted that the applicant’s failure to call Ms Venning as a witness, when it was reasonably open for her to do so, without reasonable excuse, should be taken into account in relation to her complaint that she was not accorded procedural fairness during the investigation process. Ms Venning participated, and was present at meetings, through the majority of the investigation process and could, one would expect, have shed light on whether the applicant’s complaints, in relation to procedural fairness, were merited (which is denied). Fair Work Australia should infer from the applicant’s failure to call Ms Venning as a witness without explanation that her evidence would not have assisted the applicant’s case. 15

[83] For these reasons the respondent submits the applicant has not been unfairly dismissed and the application should be rejected by Fair Work Australia.

The legislation

[84] The criteria for considering whether the dismissal of Mrs Turner was harsh, unjust or unreasonable are set out in section 387 of the Act below:

“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.”

Consideration

[85] I have considered the evidence of the witnesses in this matter and there are a number of findings and conclusions that can be drawn as follows.

The statutory framework and policies applicable

[86] The applicant was aware of Section 6 of the CCSA which provides:

“A person or body with functions under this Act must, in the performance of those functions, regard the best interests of children as the paramount consideration.”

[87] The applicant was the Supervising Officer, as defined in the CCSA during her employment with the respondent.

[88] The applicant understood that the most important aspect of her job was the day to day care of the children 16 and that as Centre Director and Supervising Officer she was to ensure staff implemented all Goodstart’s policies and that the children were supervised properly and that it was her responsibility to make sure the centre complied with all applicable legislative requirements.17

[89] The applicant was obliged to and was aware that she was obliged to recognise, assess and report all accidents, incidents and hazards in the workplace in line with Goodstart’s Health and Safety Procedures. 18

[90] The applicant was required to report breaches of the Code of Conduct or reportable allegations and importantly to report any harm or suspected harm to a child to the relevant child protection agency regardless of how this occurred. 19

[91] The applicant knew she was to report all instances of harm or suspected harm to a child in accordance with Goodstart’s Critical Incident Management Policy. 20

[92] The applicant understood that critical incidents which were to be reported to Goodstart’s Critical Incident Team and were “any unplanned event that causes or has the potential to cause serious injury to children” 21 and that the Centre Director has responsibility for making a critical incident report after speaking to the Area Manager.22

F.S. and the fall

[93] F.S. a child attending the Armadale Centre fell to the floor during an “incident” on Monday, 21 February 2011.

[94] At the time of the incident the applicant was not present at the Armadale Centre having been sent to fill in for the day as the Centre Director to the respondent’s Rockingham South Centre.

[95] F.S. was approximately four months. It is difficult to determine whether a four month old child has suffered an injury following a fall. 23

[96] The applicant first became aware of the incident on 21 February 2011 when one of her staff, Rebecca Miller, rang her and advised that the child’s rocker had tipped and F.S. had “...bumped her head on the carpet...”.

[97] The applicant asked if the child was okay and was advised that she was fine and that Ms Miller had rung the child’s parents to inform them.

[98] The applicant did not see any need to report the incident because she didn’t believe it needed to be reported to CIT because in her words “It wasn’t classed as a serious injury” and so was not a CIT incident. 24

[99] On Friday, 25 February 2011 the applicant became aware that F.S. had been hospitalised the night before. But on the applicant’s evidence she was not aware at the time what the child had been hospitalised for.

[100] The applicant then made a phone report to CIT. 25

[101] The applicant’s view at the time was that what occurred was not a head injury to the child.

[102] The applicant’s view was that there was no evidence the child’s hospitalisation on Thursday night was as a consequence of the incident on Monday. The applicant believed there was no requirement for her to report the incident to CIT. The applicant made no enquiries as to why the child had been hospitalised. 26

[103] Ms Standfield however had an alternative view when made aware of the incident in February 2011. In her view, as originally reported on the day of the incident, it was a critical incident that should have been immediately reported to CIT because it had the potential to cause serious injury to a child.

[104] I accept the evidence of Ms Standfield over that of Mrs Turner that Mrs Turner’s report of the incident to CIT on Friday, 25 February 2011 was only made following the prompting and then a direction from Ms Standfield to Mrs Turner to make the report. Mrs Turner as evidenced by the wording of her own emails felt that she had been forced into reporting the incident.

[105] I find that Mrs Turner’s actions in originally handling this incident did not comply with the respondent’s policies on critical incident reporting. I find that this was because Mrs Turner did not correctly understand these requirements (noting that as Centre Director she was expected to be fully aware of these policies) rather than that she had deliberately ignored her obligations.

Ms Bell tells Mrs Turner the true events

[106] Ms Bell gave evidence for the respondent.

[107] Ms Bell had been employed as a Carer at the Armadale Centre from September 2010 until she was dismissed in July 2011. Ms Bell was dismissed because of her involvement in the false reporting of F.S.’s fall.

[108] Ms Bell was 22 years old at the time of F.S.’s fall.

[109] Ms Bell approached another employee at the Armadale Centre some weeks after F.S.’s fall and asked for advice on what she should do and was advised to tell the applicant the true version of events.

[110] The following day Ms Bell had a conversation with Mrs Turner where she went into the applicant’s office and told Mrs Turner she needed to reassess the incident that had happened to F.S.

[111] Ms Bell’s evidence was that in reply Mrs Turner asked “Why?” and so Ms Bell told the applicant the true version of events that had occurred during which Mrs Turner said words to the effect of “Are you serious?” and “You’re not joking me?” and “I don’t believe you”.

[112] Ms Bell’s evidence was that usually she has a joking manner but whilst explaining the whole circumstances surrounding the true version of the fall of F.S. to Mrs Turner she did so in a serious manner.

[113] Critically the evidence of Ms Bell is that after she had finished telling the whole story to the applicant, Mrs Turner said okay and then said,

“You need to forget about it, it’s too late now it has already been processed”.

[114] Ms Bell’s evidence was that she was stunned by this response but then left the applicant’s office.

[115] In later discussions with her mother she decided to leave the issue and see what would happen because she thought Mrs Turner might tell Ms Standfield or deal with it in some other way.

[116] Some months later when it was apparent that nothing had been done by Mrs Turner Ms Bell’s mother sent an email to the respondent’s head office explaining the true version of F.S.’s fall.

[117] As part of the investigation undertaken by the respondent which was triggered by Ms Bell’s mother’s email, the respondent interviewed Ms Bell about F.S.’s fall.

[118] A meeting was held on 13 July 2011 with Ms Bell, Ms Standfield and Ms Burnett. Annexure DB-03 of Exhibit R7 is a Workplace Investigation - Meeting Record of that meeting drafted by the respondent. The meeting records the questions put to Ms Bell and her answers. Relevantly this record includes the following:

“Q. At any time has anybody told Rachel the correct story?

A. Yes me.

Q. When.

A. the CIT report had been sent through when I told her. It was probably a month after.

Q. What was Rachel's response?

A. It’s too late now it has already been processed. She also said she did not believe me.

Q. Did she say anything else?

A. No I don’t think so. She just said it was too late. I was on lunch and she changes the conversation.” (sic)

[119] Later in the record of meeting the following question was answered by Ms Bell as below:

“Q. You said that you went to Rachel as you felt the truth needed to be told, now you are saying you did not want to call head office as you did not want to lose your job? I am confused?

A. I did not want to lose my job at all but when Rachel said just drop it I did not know what to do.”

[120] In the wake of this workplace investigation and meeting the respondent put a show cause letter to Ms Bell whom replied by email 27 as follows:

“Dear Yasman,

In response to the allegation of falsifying the incident report in regards to an incident with F.S. i would like to show cause as why i should not be terminated.

Firstly, i was not involved in the preparation or execution of said incident report. Ms Laura Greenway wrote the incident report in a deliberate attempt to mislead both the parents of F.S. and ABC. I don’t feel that I should be held responsible for the deception when I took no part in it.

Secondly, while a story had been fabricated, I approached the centre Director Rachel Turner and told her the accurate series of events and was told to “forget about it” and that it had been “dealt with”. Until I approached Rachel she didn’t seek out Myself or Latara a.k.a. Annie to clarify the series of events that led to the accident...” (sic)

[121] Importantly the evidence of Ms Bell is to the effect that:

a. she had told Mrs Turner in some detail the true events that had occurred when F.S. fell; and

b. Mrs Turner had told her to forget about it, and that the incident had been dealt with, or words to that effect.

[122] Ms Bell’s evidence on these issues was not challenged in cross examination.

[123] This evidence of Ms Bell regarding the detail of this conversation with Mrs Turner is consistent with the record of answers she gave in the workplace investigation meeting on 13 July 2010 and also with her emailed response to the respondent’s show cause correspondence on 21 July 2011.

[124] The applicant however does not agree with Ms Bell’s version of this conversation.

[125] The applicant believes this conversation she had with Ms Bell occurred in mid-May rather than March as Ms Bell said. Nothing particularly turns on the precise date of when this conversation occurred.

[126] The applicant’s evidence was that what occurred was no more than Ms Bell making an offhand remark:

“She made an offhand remark while I was sitting at my computer desk. She just came out and went, “Rachel, I'm going to lunch.” “Okay, Demmielle.” Then we were talking for a minute. Then she said, “Rach,” and I just went, “Yes?” She said, “Remember the incident in February? Laura made it up.” I just went, “I beg your pardon?” She said, “Laura made it up,” and I just went, “come on, Demmielle. Stop mucking around,” and she just satrted to smile then nothing more was said. She never pulled me aside, she never said anything formal, just nothing. It was an offhand remark. I didn't believe her and I didn't think any more of it.”  28

[127] In cross examination the applicant said that what occurred was Ms Bell said:

“Do you remember the report we did for F.S.?” I said, “Vaguely”. She went “Laura made it up”. Words to that effect. I don’t remember in detail. And I just went, “Demmielle”, and she was just smiling and sort of doing what she does.”

[128] The applicant denied that Ms Bell told her any details and denied that she said to Ms Bell that she needed to forget about it, or that it was too late now or that the incident had already been processed. 29

[129] I have considered the conflicting versions of the conversation between Mrs Turner and Ms Bell. Ms Bell’s evidence in these proceedings about this conversation was consistent with what she told the respondent’s staff during the workplace investigation meeting and consistent with what she stated in her response to the respondent’s show cause letter. Ms Bell gave her evidence openly and was not challenged in cross examination. On balance I prefer the evidence of Ms Bell to that of Mrs Turner about the detail of this conversation.

[130] Mrs Turner’s evidence that she had not told Ms Bell it was “too late” and “to forget about it” was a self serving falsehood made in order to protect herself from the serious criticisms that naturally would follow from her having responded in that way.

Other complaints

[131] Turning to consider the other allegations and complaints that were leveled at Mrs Turner by the respondent, the evidence is clear that Mrs Turner did share so-called confidential information, being an email that Ms Standfield had sent to her, with the Cook at the Armadale Centre. Notably of course the Cook is the applicant’s husband.

[132] The evidence is also clear that Mrs Turner did attended for work on an occasion when she was certified as medically unfit to do so and that her attendance was contrary to the direction of Ms Standfield.

[133] With respect to the complaint that Mrs Turner did not follow the respondent’s policies with respect to completing incident report documentation generally, as distinct from the particular incident report regarding F.S., I am satisfied that the evidence is that the bundle of incomplete incident reports that were found by the respondent at the centre and were alleged to have been within the Centre Director’s office were not ones that were in the possession of Mrs Turner. The evidence does not support the respondent’s complaint against Mrs Turner regarding this bundle of incomplete reports.

[134] I accept the evidence is that Mrs Turner did not properly orientate a work experience student whom worked at the centre nor did she complete the correct documentation for the student.

[135] I also accept the evidence is that an unsupervised student did change a child’s nappy on 5 July 2011 in breach of the respondent’s policy.

[136] The evidence is also clear that Mrs Turner did not deal with the breaches which had been documented by the National Childcare Accreditation Council on 5 July 2011 before Mrs Turner departed on a annual leave on 8 July 2011 as she had been directed to by Ms Standfield.

Conclusion

[137] Much of the evidence and submissions dealt with the initial handling of the fall involving F.S. that occurred in February 2011. As noted above Mrs Turner’s actions at the time between 21 and 25 February 2011 were not consistent with the respondent’s policy on critical incidents but this was because she did not correctly understand her obligations in this regard. Her actions at this time were inconsistent with her obligations as Centre Director but certainly where not serious misconduct. Her actions lacked the wilful or deliberate component necessary to amount to serious misconduct. As such the issue of whether the respondent condoned these actions does not arise.

[138] However the far more serious issue concerns the subsequent conversation between Ms Bell and Mrs Turner which alerted Mrs Turner to the possibility that the incident involving F.S. might not have been truthfully reported at that time by the staff that were present at the Armadale Centre on 21 February 2011.

[139] With respect to this conversation Mrs Turner says that Ms Bell approached her whilst she was in her office, Mrs Turner says Ms Bell asked her if she remembered the F.S. fall incident in February and Mrs Turner replied she vaguely recalled it and then Ms Bell told her that a staff member had lied about this incident.

[140] Even on the applicant’s version of events this conveyed to Mrs Turner two important allegations. Firstly that what had been reported to F.S. was likely not correct and secondly that staff members had lied to Mrs Turner about these events.

[141] Each of these matters separately was potentially a serious issue. However, Mrs Turner says she didn’t believe Ms Bell and so dismissed her statements.

[142] Mrs Turner did not question Ms Bell about her statement, but instead immediately concluded it was untrue. Her reaction in this way she says was based on her negative view of Ms Bell. 30

[143] Mrs Turner’s evidence was she characterised Ms Bell’s statements as “an offhand remark” and complains that Ms Bell “never pulled her aside” and “never said anything formal.” 31 These characterisations and complaints by the applicant are inaccurate and self serving. A 22 year old staff member whom approaches the Centre Director in her office and raises an issue of false incident reporting as she did is not making an offhand remark at all. In the context of a child care centre with a small staff Ms Bell was formally raising what was obviously a highly controversial issue with her Centre Director.

[144] It is notable that both Ms Bell and her mother viewed these issues as sufficiently serious that they had decided that Ms Bell should firstly raise them with Mrs Turner and then some time later again acted to raise these issues directly with the respondent’s management. Their assessment of the seriousness of the issues was in stark contrast with Mrs Turner’s choice to do nothing, particularly given her role as Centre Director.

[145] Even by Mrs Turner’s own admission her inaction was a mistake or a lapse in judgement.

[146] However viewed objectively Mrs Turner’s inaction was more serious than that. The applicant was the Supervising Officer under the CCSA and her most important job was the care of the children. She was responsible for the centre’s staff and ensuring that the respondent’s policies where followed by staff. The applicant’s decision to reject Ms Bell’s statements out of hand without any enquiry of her, let alone of others, was a dereliction of her duty as the Centre Director.

[147] Consequently even based on Mrs Turner’s version of the conversation with Ms Bell her failure to enquire or investigate into what she had been told would have been a valid reason for Mrs Turner’s dismissal.

[148] However as I have previously found I prefer Ms Bell’s version of that conversation to that of Mrs Turner. Mrs Turner’s response to Ms Bell’s statements to the effect that it was “too late” and “to forget about it” demonstrated a deliberate decision by Mrs Turner to ignore the information and to take no further action, to let sleeping dogs lie. Notwithstanding the potential seriousness of the matters Mrs Turner chose to deliberately not investigate the likelihood that her staff had lied about and made a false report about the incident in February 2011. Nor did she take any steps to find out the truth as to what had happened to F.S. Given Mrs Turner’s responsibilities as the Centre Director this inaction was deliberate behaviour that was inconsistent with the applicant’s contract of employment and was also conduct that caused a serious and imminent risk to the reputation of the respondent (sub-regulation 1.07(2) of the Fair Work Regulations 2009). I am satisfied that the applicant’s conduct here amounted to serious misconduct and was a valid reason for her dismissal.

[149] With respect to the other allegations and complaints the respondent relied upon in the dismissal of Mrs Turner, the act of showing her husband an email from Ms Standfield is a quite minor matter in all the circumstances and would not in my view by itself be a valid reason for dismissal when considered in its proper context.

[150] Similarly attending for work when she had been directed not to because she had not received a full medical clearance would also not in the particular circumstances this arose by itself be a valid reason for dismissal.

[151] The fact that Mrs Turner did not properly orientate a work experience student and didn’t complete the correct documentation for the student would not by itself be a valid reason for dismissal nor would not having prevented an unsupervised student changing a child’s nappy by itself be a valid reason for dismissal.

[152] Finally the failure to address the breaches identified by the National Childcare Accreditation Council within the timeframe and manner required by Ms Standfield would not by itself be a valid reason for dismissal.

[153] Whilst in my view none of these other allegations and complaints against Mrs Turner would in isolation be a valid reason for dismissal taken together I have no doubt they did provide a valid reason for dismissal because they demonstrated that generally Mrs Turner was not properly discharging her responsibilities as the Centre Director.

[154] The complaint that the applicant did not follow the respondent’s policies and procedures with respect to properly completing incident report documentation generally has not been made out on the facts and the respondent was wrong to have relied on this complaint as a ground for Mrs Turner’s dismissal.

[155] In summary I am satisfied that by itself Mrs Turner’s deliberate inaction when made aware by Ms Bell of the likelihood that what had happened to F.S. on 21 February 2011 had not at that time been truthfully reported by staff was a valid reason for her dismissal and amounted to serious misconduct.

[156] Further a range of the other allegations and complaints against Mrs Turner that are supported by the evidence taken together demonstrated that she was not properly discharging her responsibilities as the Centre Director and so this also was a valid reason for dismissal although if it were not for her inaction following Ms Bell’s disclosure these matters would not have supported a summary dismissal, but rather a dismissal of the applicant with notice.

[157] Considering the procedure followed by the respondent leading up to the decision to dismiss Mrs Turner I am satisfied that Mrs Turner was notified of the reasons for her dismissal and that she was given an opportunity to respond to those reasons both during the investigation meeting with Ms Standfield and Ms Bowden and following the provision by the respondent to the applicant of the show cause letter. Whilst Mrs Turner complains that this show cause letter was sent to her whilst she was on leave and she had little opportunity to properly respond to it, in the circumstances whilst there is some truth in her complaint about this there is no suggestion that she had anything further to put to the respondent that would have changed or should have changed the respondent’s decision to terminate her.

[158] There was no refusal by the employer to allow the applicant to have a support person present at any discussions relating to her dismissal and she had the support of a union representative at various times.

[159] Whilst in part the employer’s reasons to dismiss involved unsatisfactory performance, considered as a whole this was not a case where it was a reasonable expectation that the employer would have provided the applicant with warnings given the central misconduct of which the applicant was guilty warranted summary dismissal.

[160] The respondent is a large employer which also has dedicated Human Resource Management specialists and the process than they followed was consistent with this.

[161] I note that the applicant’s period of employment was approximately 15 months.

[162] Considering all of the above then and having found that the applicant was properly dismissed for serious misconduct and that in addition there were separately other reasons that would have warranted dismissal with notice I do not accept that in any way what occurred was harsh, unjust or unreasonable. The applicant was not unfairly dismissed.

[163] Accordingly I will dismiss this application. An order consistent with this will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

P King for the applicant.

P Harris, solicitor for the respondent.

Hearing details:

2012.

Perth:

April 3 and 4.

June 7 and 25.

Final written submissions:

Respondent, 10 July 2012.

Applicant, 24 July 2012.

 1   Exhibit R8, Annexure CB-8A.

 2   Ibid., Annexure CB-4.

 3   Ibid., Annexure CB-04A.

 4   Exhibit R5, Annexure YS-12.

 5   Ibid., Annexure YS-14.

 6   Ibid., Annexure YS-15.

 7   Ibid., Annexure YS-17.

 8   Ibid., Annexure YS-18.

 9   Ibid., Annexure YS-19.

 10   See Exhibit R8, Annexure CB-17.

 11   Ibid., Annexure CB-19.

 12   Ibid., Annexure CB-23.

 13   Transcript at PN1541.

 14   Exhibit R8, Annexure CB-18 and CB-19.

 15   Jones v Dunkel [1959] 101 CLR 298.

 16   Transcript at PN648 to PN652.

 17   Ibid. at PN678 to PN685 and PN918 to PN938.

 18   Ibid. at PN691 to PN805.

 19   Ibid. atPN1116 to PN1123.

 20   Ibid. atPN1139, PN1140 and PN1145.

 21   Ibid. at PN1221.

 22   Ibid. at PN1291 to PN1295.

 23   Ibid. at PN1380.

 24   Ibid. atPN1167 and PN1170.

 25   Ibid. at PN1256.

 26   Ibid. at PN1516 to PN1524.

 27   Exhibit R7, Annexure DB-02.

 28   Transcript at PN348 to PN357.

 29   Ibid. at PN1573 to PN1586.

 30   Exhibit R5, Appendix 1 to Annexure YS-14.

 31   Transcript at PN350.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR529317>