Suganthi Manimaran v Guardian Community Early Learning Centres Pty Ltd
[2025] FWC 220
•23 JANUARY 2025
| [2025] FWC 220 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Suganthi Manimaran
v
Guardian Community Early Learning Centres Pty Ltd
(U2024/12336)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 23 JANUARY 2025 |
Unfair dismissal application – dismissal unfair – compensation ordered
Suganthi Manimaran has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Ms Manimaran was employed by Guardian Community Early Learning Centres Pty Ltd (Guardian) as a childcare worker at its early learning centre in Caulfield, Melbourne. She was dismissed after Guardian concluded that she had inappropriate discussions with parents about her visa status, in breach of its policies. Ms Manimaran denies having discussions with parents about her visa status or otherwise breaching Guardian’s policies. She contends that she did nothing wrong and that her dismissal was unfair.
Ms Manimaran’s evidence was that on 3 September 2024 she contacted a parent, Natalie Fryar, to tell her that her child’s formula had run out. Ms Fryar delivered some formula later that day. Ms Manimaran said that the centre manager, Natasha Fullerton, blamed her for the formula running out. When Ms Fryar saw this, she became angry and asked Ms Fullerton why she blamed Ms Manimaran for the problem. The next day was ‘Educator’s Day’. The new centre manager, Chelcee Karp, offered her a gift, but Ms Manimaran politely declined it and said that if Guardian wanted to care for their employees then it should listen to them. Later that day, Ms Manimaran spoke with Ms Karp and the human resources manager, Brendan Packer, about her concern that her visa was going to expire on 21 November 2024. Mr Packer said that he would look into the matter. Guardian had previously said that it would not sponsor a visa for her. Ms Karp remarked that it was positive that Mr Packer had become involved.
On 11 September 2024, Ms Manimaran received a letter from Ms Karp alleging that she had been sharing confidential information with families, and that she had failed to maintain professionalism in the workplace. The letter stated that on 4 September 2024, Ms Karp had overheard her having a conversation with a parent, at the end of which the parent stated that she would contact Ms Manimaran that evening. The letter then stated that it had come to Ms Karp’s attention that Ms Manimaran had been discussing the question of her visa sponsorship with a parent. It also referred to Ms Manimaran’s refusal to accept the gift and appeared to suggest that this was unprofessional. Ms Manimaran met with Ms Karp on 13 September 2024 to discuss these matters. Ms Manimaran denied discussing her visa situation with families. Despite this, Ms Karp gave her a formal warning. The minutes of the meeting recorded that Ms Manimaran had breached the code of conduct and the company’s policy on communicating with families, and that she had used her role as an educator to gain personal contact details of families and to contact them outside of work. Ms Manimaran denied that she had done any of these things.
Ms Manimaran’s evidence was that on 17 September 2024, during a conversation with Ms Karp and Ms Fullerton, Ms Karp said to her that she should get married and obtain a visa that way, and that Ms Fullerton said that she should become gay and find a partner in order to remain in Australia. Ms Manimaran replied ‘no’. She was very embarrassed and did not tell anyone about the conversation.
On 18 September 2024, Ms Manimaran received another letter from Ms Karp, stating that she was concerned that she was having inappropriate discussions with families and sharing information about her visa situation. The letter stated that on 12 September 2024, Ms Fryar had approached Ms Karp and accused her of having suggested to Ms Manimaran that she should commit marriage fraud in order to get a visa, which Ms Karp said was not true, and that Guardian believed Ms Manimaran had conveyed this to Ms Fryar.
The same day, Ms Manimaran wrote to Mr Packer about the letters she had received from Ms Karp. She told Mr Packer that she had never spoken to parents about her visa situation and that she always kept her personal matters private. She said that she had no idea how Ms Fryar knew about the discussion she had with Ms Karp in which Ms Karp had joked or suggested that she should find a partner and get married for a visa, but that it had not come from her. Ms Manimaran did not receive a reply from Mr Packer, as he was on holiday.
On 23 September 2024, Ms Manimaran attended a meeting with Ms Karp and Ms Fullerton to discuss the letter of 18 September 2024. Ms Manimaran’s evidence was that the meeting was very quick, that she denied the allegations in the letter, and that after a break she was told that she would be contacted the next day. At an online meeting on 24 September 2024, Ms Karp told her that she was dismissed for breaching the code of conduct and the policy on communicating with families. Later that day, Ms Manimaran was given a letter confirming that her employment had been terminated. She was also given the minutes from the meeting that day. The minutes stated that she had been terminated for breaching the code of conduct and the policy, and also for using her role as an educator to gain personal contact details of families and contacting them outside of work. The termination letter referred to Ms Fryar’s statement about Ms Karp’s ‘marriage’ remark, which it said was not true, and stated that Ms Fryar seemed to know a lot about Ms Manimaran’s visa status. The termination letter stated that the decision to dismiss Ms Manimaran had been taken due to ‘ongoing inappropriate discussions (with) families of the service’ which had ‘negatively impacted Guardian’s reputation and commerciality and is in breach of our policies’. It also said that Ms Manimaran had been warned about similar conduct on 13 September 2024.
Ms Manimaran said that on 7 October 2024 she discovered a review of the centre that had been posted online by Ms Fryar on 2 October 2024. Ms Fryar stated among other things that the centre manager had inappropriately discussed a staff member’s visa status with her, and that the manager had told her that she had suggested to the staff member that she should find a husband and secure their visa that way. The post indicated to Ms Manimaran that it was in fact Ms Karp who had discussed her visa situation with Ms Fryar, and the marriage remark.
Ms Fryar’s evidence was that during a 13-minute telephone call with Ms Karp on 4 September 2024, Ms Karp told her about Ms Manimaran’s visa status and her reliance on sponsorship for continued residency in Australia. She said that later in the conversation, Ms Karp suggested that Ms Manimaran had disclosed her sponsorship concerns to Ms Fryar. Ms Fryar replied that this was not true. Ms Karp then said that she had told Ms Manimaran that she should find a husband and get married for a visa. Ms Fryar said that during a later encounter with Ms Karp at the centre, she ‘called out’ Ms Karp’s earlier actions, including her disclosure of Ms Manimaran’s personal information and her comments about visa sponsorship, and said that she found this ‘repugnant’. Ms Fryar made a number of other criticisms about the centre and said that on 17 September 2024 she cancelled her daughter’s enrolment. Ms Fryar gave Ms Manimaran a copy of a complaint that she had submitted to the Department of Education in which she raised various concerns about the centre, including that Ms Karp had told her about Ms Manimaran’s visa situation, and that Ms Karp had told her that she had suggested to Ms Manimaran that she should find a husband to get a visa.
Ms Manimaran told the Commission that she did not share information about her visa status with families and that she did not tell Ms Fryar that Ms Karp had suggested that she should get married. Ms Manimaran said that she had simply not done the things of which she was accused. It was clear that it was Ms Karp who had disclosed her visa details to Ms Fryar, and that she had told Ms Fryar about the marriage remark. No details had been given of statements that she was said to have made to other parents about her visa situation. Ms Manimaran also said that the termination letter was wrong to say that she had received a relevant warning because the alleged conduct for which she appeared to have been dismissed was an interaction with Ms Fryar which could only have occurred prior to the warning that she was given on 13 September 2024. Ms Manimaran said that it was unfair that Ms Karp was the person who decided to dismiss her when she was a person involved in the relevant facts and had been the subject of Ms Fryar’s allegations. She also said that dismissal was a disproportionate response to the alleged misconduct.
Ms Karp gave evidence that she took up the role of centre manager in mid-August 2024. She said that around this time Ms Manimaran told her that she was employed under a visa arrangement that would expire in November 2024, and that the only way she could stay was by receiving a visa sponsorship from Guardian or another employer or for her to get married. Ms Karp said that she told Ms Manimaran to speak to Brendan Packer in human resources.
Ms Karp said that on 4 September 2024 she approached Ms Manimaran to give her a gift for ‘Educator’s Day’ but she declined it because Guardian had not treated her well. Ms Karp said that later that day, she telephoned a parent, Ms Fryar, whom she had seen the previous day looking upset. Ms Karp said that she did not discuss Ms Manimaran’s visa status with Ms Fryar, and that she did not tell Ms Fryar that she had told Ms Manimaran to get married in order to obtain a visa. Ms Karp said that later on 4 September 2024, she noticed that Ms Manimaran was whispering to a parent, and that the parent said that she would call her later. Ms Karp said that she was concerned that this was inconsistent with the code of conduct and the policy on communicating with families. On 13 September 2024, she and Ms Hamill met with Ms Manimaran and gave her a warning about this.
Ms Karp said that on the afternoon of 13 September 2024, she was at the centre reception area greeting parents as they arrived. She saw Ms Fryar and went to say hello. Ms Fryar said that she would be seeking other childcare arrangements for her child, and that what Ms Karp had said to her previously was ‘disgusting’. Ms Karp said that she did not know what Ms Fryar was talking about. Ms Fryar replied that the previous week Ms Karp had suggested that Ms Manimaran should commit marriage fraud in order to get a visa to stay in the country. Ms Karp’s evidence was that she was shocked because she had not said this to Ms Fryar or Ms Manimaran. Ms Karp said that she concluded that it was more likely than not that Ms Fryar had learned of Ms Manimaran’s visa status directly from Ms Manimaran.
On 18 September 2024, Ms Karp sent Ms Manimaran the letter referred to earlier (see [5] above). At a meeting on 23 September 2024, Ms Karp and Ms Fullerton discussed with Ms Manimaran the allegations raised in that letter. Ms Manimaran denied sharing details of her visa arrangements with Ms Fryar. Ms Karp and Ms Fullerton did not accept this. They decided to dismiss Ms Manimaran. On 24 September 2024, Ms Karp sent Ms Manimaran a termination letter. Ms Manimaran was paid 3 weeks of salary in lieu of notice.
Ms Fullerton’s evidence was that she had been the manager of the Caulfield centre and that from mid-August to mid-September 2024 she undertook a handover to Ms Karp, who would be the new manager. Ms Fullerton said that earlier in the year, Ms Manimaran and several other workers had asked Guardian to sponsor them for visas, and that the company had considered this but ultimately decided not to do so. Ms Fullerton said that she did not recall any discussion with Ms Manimaran in which Ms Karp suggested that she get married in order to obtain a visa. Ms Fullerton denied saying to Ms Manimaran that she should become gay to get a visa and said that she would not say this and that it did not even make sense. She also said that she was sure that she was not at the Caulfield centre on 17 September, or during that week or the week before, and that her diary confirmed this.
Ms Fullerton said that there were two occasions in August 2024 when the formula for Ms Fryar’s child had run out and staff had to ask Ms Fryar to bring in extra formula. She was aware that Ms Fryar was not happy about this. Ms Fullerton had spoken to Ms Manimaran about what she needed to do to ensure that proper levels of formula were maintained in the room. On 3 September 2024, Ms Fullerton was assisting in the nursery room when Ms Fryar brought in formula for a third time. Ms Fullerton was surprised and turned to Ms Manimaran and said simply, ‘Suga?’. Ms Fullerton said that Ms Fryar then ‘went off’ at her and called her a bully for the way that she spoke to Ms Manimaran. Ms Fullerton replied that she could not speak like that in front of the children and invited her to the office to discuss the matter. Ms Fryar again called her a bully and then raised other concerns that she held about the centre.
Ms Fullerton said that she attended the meeting with Ms Manimaran on 23 September 2024, and that she asked Ms Manimaran if she had spoken to Ms Fryar about her sponsorship, and she said no. She also asked Ms Manimaran if she had spoken to Ms Fryar or any other parent about being unsatisfied with the centre, and she said no. Ms Fullerton and Ms Karp then paused the meeting and conferred. They considered that Ms Manimaran had in fact spoken to Ms Fryer about her sponsorship and was not being truthful to them about that. They then told Ms Manimaran that they would convey their decision the following day. Together with Sam Lucas from human resources, they decided to dismiss her.
Michelle Hamill is a portfolio manager for Guardian who oversees 10 centres, including the centre at Caulfield. Ms Hamill said that Guardian did not allow its employees to form relationships with families outside of the workplace and that this was in order to maintain professional boundaries. Ms Hamill said that Ms Manimaran had developed friendships with some parents outside of work and was having inappropriate conversations with them. She did not provide any details. Ms Hamill attended the meeting with Ms Karp and Ms Manimaran on 13 September 2024 that is referred to above. Ms Manimaran said that she had contacted a parent outside of work for personal reasons and they had become quite close. She was given a warning.
Ms Hamill said that at some point she called Ms Fryar in response to a complaint that she had received from her. They discussed Ms Fryar’s concerns about the supply of formula, and an incident where her child had hit her head. Ms Fryar then asked why Guardian had not sponsored Ms Manimaran’s visa. Ms Hamill replied that she could not discuss that information with her. Ms Fryar then said that Ms Fullerton had not treated Ms Manimaran well and that Guardian should not let such people work for it. Ms Hamill said that Ms Fryer became very aggressive on the telephone because she was not getting the kind of answers she wanted. She told Ms Fryar that she would follow up on her complaints.
Consideration
I make the following factual findings. I accept Ms Manimaran’s evidence that she did not discuss her visa situation with Ms Fryar, or with any other parents at the centre. She was a credible witness and I believe her. In particular, I accept her evidence that she did not tell Ms Fryar that Ms Karp had suggested to her that she should get married in order to obtain a visa. Her denial was clear and credible. It is consistent with the message that Ms Manimaran sent to Mr Packer on 18 September 2024 in which she refuted the suggestion that she had said any such thing to Ms Fryar. Ms Manimaran’s evidence is also consistent with that of Ms Fryar, who said that Ms Manimaran did not tell her about her visa status or about Ms Karp’s remark, and that instead it was Ms Karp herself who told her about these things. I accept Ms Fryar’s evidence. It was clear, detailed and convincing. Ms Fryar felt so strongly about the matter that it formed part of her written complaint to the Department of Education.
Ms Karp denies telling Ms Manimaran that she should get married to get a visa or telling Ms Fryar about this. I do not accept her evidence on these points. I find on the balance of probabilities that she did both of these things. This does not mean that I consider her evidence to have been untruthful. If the marriage remark was made in jest, she may have regarded it as insignificant and not remembered it. However, I find it highly unlikely that both Ms Manimaran and Ms Fryar would be mistaken about these matters, and both of them were credible witnesses.
Ms Fullerton denied suggesting to Ms Manimaran that she should become gay. This is an improbable thing for a person to say and it does not ring true to me, in part because it does not make sense, even as a joke, as there is no logical link between a person’s sexuality and the prospect of getting a visa. I do not think that Ms Manimaran was untruthful about this. In my view it is likely that she misheard or misunderstood something. I accept Ms Fullerton’s evidence that she was not in Caulfield on 17 September 2024. Perhaps Ms Manimaran got the date wrong. But this does not affect my assessment of Ms Manimaran’s other evidence, which I accept. I note that Ms Fryar’s evidence, which I also accept, is that Ms Karp told her about Ms Manimaran’s visa situation and about the ‘marriage’ remark much earlier, on 4 September 2024. It may be that the remark was made several times.
It is clear to me that Ms Manimaran did not tell Ms Fryar about the marriage remark or about her visa status. There is no evidence of her telling any parents about these things. Further, the evidence does not support a conclusion that Ms Manimaran discussed her visa status with any other clients of Guardian. But even if she had done these things, I do not consider that this conduct would have contravened the code of conduct or the company’s policy on communicating with families. I asked Guardian’s representatives to indicate which provisions of these documents prohibited employees from disclosing personal details about themselves or forming personal relationships with parents. Guardian referred to several general concepts found in the documents, such as professionalism, and to the list of things that ought to be the focus of communications with parents, which did not include personal matters. But it is not inherently unprofessional for a worker to mention personal details to a client of their employer. If the employer wants to prohibit such conduct, it should do so clearly and expressly. One would have thought that rapport between worker and parent would be important in a childcare centre and that certain personal details might reasonably be exchanged as part of a process of building a relationship with parents. In any event, I consider that even if the conduct that Ms Manimaran was alleged to have engaged in had actually occurred, it would not have contravened Guardian’s policies. Further and in any event, dismissal would have been a disproportionate response to the allegations that were put against Ms Manimaran.
The termination letter stated that Ms Manimaran’s conduct had damaged Guardian’s ‘commerciality’, by which I assume it meant its business. I find that this was not the case. It is true that Ms Fryar cancelled her child’s enrolment but this occurred because of a range of concerns that Ms Fryar had about the centre. The contention that Ms Manimaran damaged the company’s reputation has not been substantiated and I reject it. The online review of Ms Fryar was public and potentially damaging to the company, but this was not the consequence of Ms Manimaran’s conduct. I also reject the company’s contention that Ms Manimaran had ‘overshared’ information and that this had led to unpleasant situations, by which the company primarily meant the various negative interactions it had with a dissatisfied client, Ms Fryar. But this was not Ms Manimaran’s fault.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the matters in s 387. I conclude that there was no valid reason for Ms Manimaran’s dismissal (see s 387(a) of the Act). She did nothing wrong. Ms Manimaran was notified of a reason for dismissal, but not a valid one (s 387(b)). She had an opportunity to respond to the allegations against her (s 387(c)). She was not unreasonably refused a support person (s 387(d)). She was not warned about her performance (s 387(e)); the warning that she received on 13 September 2024 was about allegations relating to her conduct, not her performance, and in my view the allegations that were the subject of the warning were not substantiated because Ms Manimaran had not conducted herself in the manner suggested. The considerations in ss 387(f) and (g) have no weight in this matter because the employer is a large organisation. In all the circumstances, I find that the dismissal was unreasonable because Ms Manimaran did not do anything wrong, and in particular she did not do the things of which she was accused.
As to remedy, reinstatement is inappropriate. Ms Manimaran’s present visa does not allow her to work. Ms Manimaran sought an order that Guardian sponsor a new visa, but the Commission has no power to make such an order. I consider that compensation is appropriate. In assessing compensation, the Commission is required to consider the matters in s 392 of the Act, including the amount that the applicant would have earned if the dismissal had not occurred. I conclude that Ms Manimaran would have remained employed for another 8 weeks and 2 days; that is, from 24 September 2024 until 21 November 2024, which was the date when her work visa expired. Her hourly rate was $35.85, and she worked 38 hours per week. From the 8 weeks should be deducted the payment of 3 weeks in lieu of notice that she received from Guardian. This leaves 5 weeks and 2 days of pay, which gives a figure of $7,356.42. To this must be added 11.5% superannuation, which is an amount of $845.99. Ms Manimaran said, and I accept, that she did not earn any money between the date of her dismissal and 21 November 2024. No further deductions need to be made.
I will order these amounts to be paid to Ms Manimaran within 28 days. An order is issued separately in PR783617.
DEPUTY PRESIDENT
Appearances:
S. Manimaran for herself
C. Karp, N. Fullerton and M. Hamill for Guardian Community Early Learning Centres Pty Ltd
Hearing details:
2025
Melbourne
17 January
Printed by authority of the Commonwealth Government Printer
<PR783616>
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