Sharon Leigh Wadey v YWCA Canberra (ACN 008 389 151)

[1996] IRCA 5

CATCHWORDS

TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - CONDUCT - VALID REASON - INSTANT DISMISSAL - PROCEDURAL FAIRNESS

Industrial Relations Act, 1988 Sections 170 CD 170 EA

SHARON LEIGH WADEY V. YWCA CANBERRA (ACN 008 389 151)

NO. AI 1265 of 1995

Court:   Judicial Registrar Linkenbagh

Date:    16 January 1996

Place:   Canberra    

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY  NO. AI 1265 of 1995

SHARON LEIGH WADEY
  Applicant

YWCA CANBERRA
  A.C.N. 008 389 151

Respondent

MINUTES OF ORDER

16 January 1996

The Court orders that:

1. The application be dismissed.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the
Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY  NO. AI 1265 of 1995

SHARON LEIGH WADEY
  Applicant

YWCA CANBERRA
  A.C.N. 008 389 151

Respondent

JUDICIAL REGISTRAR LINKENBAGH
CANBERRA, 16 JANUARY 1996

This is an application under Section 170 EA of the Industrial Relations Act, 1988. The applicant was employed from 8 February 1992 to 21 July 1995 as a Childcare Worker at the respondents' premises known as Campbell Cottage Child Care Centre in Canberra. At the time her employment came to an end she was 24 years old and a Level 4 Childcare Worker. Her duties placed her in charge of the Pre-School Room at the Centre.

Until June of 1995 she had not come under adverse notice by her employer in respect of any aspect of her conduct or performance. In June the employer was aware that the applicant was following up employment opportunities elsewhere. In June & July 1995 the Director of the Centre spoke to the applicant about three aspects of her work performance, which are remarkable primarily not for the facts which gave rise to them, but because they support, in the opinion of the Director at least, a decline in the applicant's commitment and focus to her work at the Centre. It was in that context that the events of 13 July 1995 occurred.

On 13 July 1995 the applicant and a three year old child at the centre came into conflict. The child, Millie, was described by the applicant as having a bad temper. The applicant was unable to achieve an acceptable level of behaviour from Millie so she restrained the child with her own body and placed sticky tape over the mouth of the child. The applicant admits those actions, which occurred in the presence of other children and staff. The fine detail as to, for instance, the manner of the restraint or the number of pieces of tape, is in the opinion of the Court, of little consequence in the circumstances.

The applicant's conduct, even on her own version of the events given in her oral evidence, breached the expected standards of disciplinary action which are embodied in Principle 4 of the 52 Principles of Quality Improvement and Accreditation System which are required for accreditation by the National Childcare Accreditation Council. It also put her employer's accreditation at risk. and breached, in the opinion of this Court, the reasonable expectations of trust and confidence and reasonable community standards which any parent placing his or her child in the care of staff at a Childcare Centre is likely to have.

The evidence of the Director of the Centre indicates that the applicant was aware of Principle 4 , and, being employed as a formally trained Childcare Worker, she must have been aware that her conduct on this occasion was an inappropriate method of discipline. The applicant has admitted that she was so aware.

The applicant's conduct did not come to the notice of her employer until 19 July 1995 when Ms Franklin, a Junior staff member who had witnessed the events of 13 July, told the Director, Ms Lehmann, about them. Ms Lehmann perceived the incident as serious and immediately commenced an inquiry, speaking with those staff members who witnessed the events, and seeking advice from other appropriate persons as to the course she should adopt. Ms Lehmann was aware of the applicant's position and was concerned about any breach of the Centre's licensing standards.

The case for the applicant included criticism of Ms Franklin for her delay in reporting her observations, and of Ms Lehmann as to the procedure and details of her inquiry. Both women together with Ms Crampton who also witnessed the incident, swore affidavits in these proceedings, gave oral evidence and were cross examined. All three, in the opinion of the Court, gave truthful evidence to the best of their recollections.

The inquiry conducted by Ms Lehmann included three meetings with the applicant on 18 July, 19 July and 21 July, and at the third meeting the applicant tendered her resignation. A union representative and the applicant's mother were involved in the meeting process. The applicant's case included issues as to the timing of the second meeting, and of the preparation of notes of the first meeting. Those issues are of little consequence given the findings the Court makes as to the gravity of the applicant's conduct on 13 July and of the course of action she undertook after 13 July.

The applicant took no steps to inform her employer of the incident, and it appears, would not have done so but for Ms Lehmann's initiating a discussion with her on 18 July. In her oral evidence she told the Court that she knew it was a wrong thing, but that it was "not significant enough" to warrant reporting. She also told the court that what she did was a "last resort" and agreed under cross-examination that she did not have an understanding of child care philosophy.  When she was spoken to by Ms Lehmann, the applicant excused her conduct on the basis that it was not life threatening and appears to have little understanding that her conduct constituted a breach of acceptable standards, abuse of a child, and possibly an assault on the child. Her oral evidence and demeanour before the Court  confirmed that she had little understanding of the gravity of her actions, and no real contrition or remorse was evident. Her case was directed towards peripheral issues, failed to address the need for her to take responsibility for the consequences of her conduct and tended to play down the effect of her conduct on fellow staff members.

In the opinion of this Court the applicant's conduct would have warranted dismissal without notice, and her attitude reinforces that view. The Court is satisfied that the respondent has under Section 170 DC discharged its obligation to afford procedural fairness to the applicant. It is regrettable that the applicant, a young person who has undertaken training in her chosen career may well find it difficult to work at that career. Nevertheless, there are onerous responsibilities cast on those who are trusted to exercise care and control over children, and the applicant's conduct and attitude indicate that she did not fully appreciate those responsibilities as at 13 July. She breached the trust placed in her with the consequence of undermining the confidence of her employer in her ability to perform her functions at the Centre. She was therefore not fit to continue in her employment.

The Court finds that the employer had a valid reason to terminate this employment, if in fact the termination was at the initiative of the employer, and that the termination was not harsh of unreasonable. The resignation tendered on 21 July was not relied upon by the respondent in its submissions and it is not necessary for the Court to determine wether it was a genuine resignation or a "Constructive" dismissal.

The application is dismissed.

I certify that this and the preceding 2 pages are a true copy of my reasons for Judgment.

Maria Linkenbagh
Judicial Registrar

Solicitor for the Applicant:      Mr. John Wilson
  Crossin Barker Gosling

Solicitor for the Respondent:     Mr. A. Grinsell-Jones
  Deacons Graham and James