Unfair Dismissal: Read v Gordon Square Child Care Centre Inc

Childcare worker’s dismissal for momentary inattention overturned - Mary Read
v Gordon Square Child Care Centre Inc T/A Gordon Square Child Care Centre [2013] FWCFB 762

The Full Bench of the Fair Work Commission has recently handed down an important decision in relation to unfair dismissal for breaches of operational workplace codes.  Whilst the decision will have important direct ramifications for employers and employees in the childcare sector, the decision also illustrates the importance of employers, even small employers, adequately documenting adverse events and providing meaningful performance management before dismissing an employee.

The Facts and the initial decision

Mary Read (the Applicant) was the Director of Gordon Square Child Care Centre (the Respondent), a small not for profit community child care centre, managed by a board of volunteers.  Ms Read had been employed in the centre for 21 years and the Director for 12 years.

The events which directly occasioned the Applicant’s dismissal occurred on 6 March 2012.  The Applicant was alone at the Centre and met the first child of the day to arrive at 7.30 in the morning.  The child was upset.  At about 7.35, the child’s father left with the child still crying.  A few minutes later, the phone rang in reception, about 5 metres away – but out of direct visual contact with the child.  The Applicant moved out of the child care room to answer the phone which then stopped ringing.  At that time another family arrived.

The Applicant noted that the management strategy for the upset child (which had been agreed by the mother) was to allow her to come out of it on her own.  For the three minutes after the father left, the Applicant got the room ready for the day.  When the Applicant moved towards the reception, she left the child in the centre of the room and could still hear the child crying from reception.

The Respondent dismissed the Applicant on the basis that the Applicant had breached its Supervision Policy and the Education and Care Services National Law (Application) Act 2011 (Tas) (giving effect to the national law).  The Policy requires that carers ‘effectively supervise’ children by ‘actively watching and attending their environment’ and that carers:

                      ‘should avoid carrying out activities that will draw their attention away from supervision such as reading or speaking on the phone’.

The Act imposes and obligation on the approved providers to

                     ‘ensure that all children…. are adequately supervised at the all times.’

The Commission also considered the Guide to the National Law which provided:

                    ‘Every child should always be monitored actively and diligently.  This means knowing where children are at all times.’

At first instance, Commissioner Bissett held that the Applicant was in breach of the Policy and the Act, noting that the Applicant’s move to answer the phone meant that she was ‘no longer monitoring the child actively and diligently’.  The Commissioner also noted that the Applicant had admitted that, when the phone rang, she thought about whether or not the call was a staff member calling in sick.

The Respondent also argued that there had been a number of performance concerns regarding the Applicant, some several years old.  However, these were not documented, apart from a single issue in August 2011 where the Applicant had permitted a child to play under a desk where there were computer and power cables.  No formal warning was given at that time.  However, the Commissioner held that this event could be considered.  The Commissioner decided that this event and the failure to provide supervision on 6 March 2012 constituted a valid reason for termination and noted the ‘great responsibility’ of the carer and the fact that there could not be ‘half measures’.  The Commissioner also noted that the real problem was not the physical separation but that:

                            ‘[the Applicant] had switched her mind to other matters and hence was not adequately supervising the child.’

In relation to the August 2011 incident, the Commissioner noted that the Applicant’s conduct had left a child in a ‘vulnerable position’.

Accordingly, the Commissioner held that the dismissal was justified and not ‘harsh, unjust or unreasonable’.

The Appeal

The Applicant appealed to the Full Bench of the Fair Work Commission on various grounds, including the obvious public interest in the Commissioner’s consideration of ‘adequate supervision’ under the Policy and the Act.

The Full Bench found that the Commissioner had erred in finding that the Applicant’s actions on the morning of 6 March 2012 failed to constitute ‘adequate supervision’.  In particular, the Full Bench noted that the Commissioner had relied on an inference that the Applicant’s thought about the nature of the phone call had caused the Applicant to cease effective supervision.  The Full Bench found, however, that this inference did not necessarily arise from the facts – it was possible for the Applicant to consider the phone call and maintain adequate supervision.  The Full Bench noted that the Policy did not prohibit phone calls, but merely stated that carers ‘should avoid’ speaking on the phone.  The Full Bench found that adequate supervision had been maintained noting that the diversion of the phone call was momentary, the Applicant was no more than five metres from the child and that the Applicant could still hear the child.

The Full Bench also noted that the earlier incident was insufficient on its own to constitute a valid reason for dismissal.  The Full Bench noted, additionally, there had been no warning provided to the Applicant that her employment was at risk or management of her performance.

The implications of this decision

Although the Full Bench did not specifically say so, its decision clear injects a level of realism into the concept of ‘adequate supervision’.  Trained and experienced educators will often be called on to carry out a multitude of physical and administrative tasks during the working day whilst maintaining supervision of a number of children.  The standards suggested by Commissioner Bissett’s decision – if taken literally – would have the potential to significantly change the nature of childcare and drive up costs.

However, it is clear that the Respondent had failed to follow up significantly on issues that it had with the Applicant or to effectively manage her performance after adverse events.  This is an important part of ensuring the validity of any process leading to a dismissal and one that small businesses must pursue – especially those that operate in tight regulatory environments such as child care.

Although the outcome was positive for the Applicant, the decision is a salutary warning for employees about the possible consequences of breaches of workplace policies and legislation.  Commissioner Bissett’s decision rested on an inference arising out of a (presumably) normal daily occurrence.  Employers and employees should ensure that systems are in place that comply with the regulatory procedures and that there are sufficient safeguards (such as phone forwarding or additional staff at the beginning or the end of the day) to avoid even the suggestion of a breach.

 

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

 

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