Busway v Johnson

[11]

6 Ms Reid had been a long-term employee of the respondent when she was terminated by an unsigned letter, but with the stamp of the Woodenbong Preschool Kindergarten Inc Management Committee at the bottom of the letter, dated 2 July 2008 received by Ms Reid on 29 July 2008. The letter referred to an incident that occurred at the preschool on Wednesday 26 March 2008. I should note that the respondent stated that the date of 2 July was a misprint and should have read 25 July 2008. I accept this submission. 7 As the preschool did not operate five days a week Ms Reid position of Teacher/Director was part time. At the time of termination she was working three days a week for a total of 21 hours and received $1458.26 per fortnight. 8 Ms Reid stated that post her termination she would have earnt approximately $500 from a small craft shop she runs with her husband and some home cleaning work. 9 She stated that the preschool is run by a voluntary Management Committee, many of whom children attend the pre school. She also stated that she was active in the local community holding voluntary positions in various organisations. She has also attended training programmes to maintain her professional development. 10 In her written statement Ms Reid said that on 26 March 2008 she left the pre school at around 9.30am to attend an off site meeting at Bonalbo that was to commence at 10.30am. Whilst she was absent the usual practice was for Ms Linda Jardine to be in charge. Ms Reid said she returned to the preschool at approximately 2.30pm and advised the other staff that she had returned. 11 By about 3.30pm all the children had been collected. Two employees Linda and Eloise then showed her a hand written note of two separate incidents that had involved C1 and two other children C2 and C3. One incident had been witnessed by a volunteer Ms Kelly Mundine, and the other by Ms Linda Jardine. Discussion took place between the three women concerning abuse indicators and sexualised play. The two incidents that had occurred that day was the first time any staff had witnessed this type of behaviour from C1. The three women then discussed other matters concerning C1 and the possible need to contact DOCS for a report regarding their suspicions in relation to C1. 12 Ms Reid stated that it was her practise to monitor the children in the bathroom if more than one child is in there or any child has been has been in there for some time. 13 Ms Reid said that she spoke to Robyn on the following Friday 28 March 2008 when both were at work and spoke to Kelly when she was next at work. She was seeking to gather extra information. She told them to monitor C1 to ensure there was no exposure of any other children to similar incidents. She said they then discussed the need to devise a new report form to record any future incidents. 14 At the staff meeting on 31 March 2008 the staff discussed the incidents and devised a new generic form that could be used for any behaviour/incident that may occur in the future. General discussion took place with members of staff speaking on the sexual assault training they had received and a course that had been given by Ms Emma Jeffrey. Ms Reid stated that there was no clear information provided in any of the training manuals regarding what to do in relation to notifying parents where other children were involved. She said that it was not felt that the behaviour towards the other children amounted to sexual abuse or assault, but that the behaviour could be an indicator that C1 may be at risk. 15 On the following day there was an unannounced visit to the preschool by Department of Community Services (DOCS) advisors Ms Rutlidge and Ms Welch. It was a routine visit to monitor the centre. Ms Reid said that she spoke to the advisors regarding her intention to report her suspicions about C1 and informed them of the incidents that had occurred on 26 March 2008. The notification to the other parents was also discussed and it was suggested that she ask the case worker the correct protocol at the time the notification was made. Ms Reid stated that no concerns were raised by either of the DOCS officers in relation to her handling of the matter or the manner in which she was addressing her suspicions. 16 Both advisors did state that the parents of C1 should not be informed. 17 Ms Reid said that she read all the information in the "Child Protection Folder" at the centre and the current policy at the centre. In her view neither documents gave clear directions. She said she also read the information provided by the school and the DOCS Inter-agency Guidelines prior to making the call to DOCS. 18 Ms Reid stated that she had sought to contact DOCS whilst at home but did not have all the information at hand and it was difficult at work when the office was not being used and therefore confidentiality was at risk. Both staff who witnessed the incident involving the other two children had stated to Ms Reid that the incidents were very short and had been dealt with quickly and in a low key manner. Her primary concern was that of the behaviour of C1 and that her behaviour was a possible indicator of a child at risk of harm and that something may have been happening to her outside of the pre-school environment. 19 On 9 April 2008 Ms Reid phoned DOCS helpline for mandatory reporters to report her suspicions in regard to C1 being a child at risk. All information was given to DOCS. Ms Reid was advised to speak to both of the other mothers in person and to be prepared for the "fall out". 20 The mother of C2 was the Vice President of the Management Committee of the respondent. She also worked at the Woodenbong Central School. Ms Reid contacted this mother and spoke to her for about one hour. 21 Whilst Ms Reid sought to contact the mother of C3 by phone on a number of occasions she was unsuccessful. This child came to the preschool by bus so Ms Reid did not have the opportunity to see the mother of C3 on a daily basis. 22 On 11 April 2008 which was the last day of term the mother of C2 contacted the administrative assistant Ms Marian McKey to advise that she wished to speak to all the staff at 3.00pm that day including Robyn who was sick at home. At the meeting she advised that both she and her husband were very unhappy with the way the incident had been handled and that she should have been told on the day that it occurred. She said that she had spoken to DOCS and to the Management Committee President about the incident.

[12]

Discussion also took place on the necessity to speak to the mother of C3. It was decided that Ms Reid and Robyn would go out to her home and see her early the following week. 23 On that day when Ms Reid was about to go and see the mother of C3 she received a phone call from the President of the Management Committee who directed her to not to go and see C3's mother. Ms Reid was advised that the Management Committee would handle it. 24 During the holidays DOCS contacted Ms Reid to ascertain the whereabouts of C1 and the family. 25 On 23 April 2008, the President of the Management Committee, Ms Sarah Downham called Ms Reid to organise a meeting to discuss with her the incidents of 26 March 2008. Ms Reid was advised that the mother of C2 had lodged a formal complaint to the management committee. It was then suggested that Ms Reid go and speak to the mother of C3 when school returned. 26 On 29 April 2008 Ms Reid and Ms Jardin spoke to C3's mother. C3's mother had received a phone call during the holidays from Ms Downham advising her that an incident had taken place and that she should call DOCS for further information. Ms Reid said that all the questions asked by C3's mother were answered. 27 On Friday 16 May 2008 Ms Reid was advised by Ms Downham that after seeking advice from DOCS Country Children's Services (CCSA) and legal advice, that the management committee had made a decision to terminate her employment, but that she could resign by Monday before the Committee formalised their decision. At that point Ms Reid contacted her union who advised her to continue to go to work. 28 Ms Reid stated that her union organiser contacted Ms Downham and discussed the issue. At the following committee meeting on the Monday 19 May the committee did not move to terminate Ms Reid. 29 Ms Reid said that she believed that the committee received correspondence from DOCS regarding two suspected breaches of the Children's Services Regulations 2004 that arose from the incidents of 26 March 2008. 30 A meeting took place at the Kyogle Shire Council Chambers on 22 May 2008. Present were representatives from DOCS, members of the Management Committee and staff and Ms Reid and Ms Jardine. Subsequent to this meeting the Committee were required to furnish DOCS with further information. Ms Reid stated that she was advised by one of the DOCS officers Ms Jeanette Rutledge that there was no time frame for notification regarding children at risk of harm, only that it should be done "as soon as possible". Ms Reid said that she prepared a response to the information requested and sent a memorandum to the two DOCS officers Ms Jenny Jones and Ms Rutledge. 31 On 16 June 2008 the President of the management committee resigned from her position. A letter apologising to the two parents of C2 and C3 was prepared by the committee, and all staff were asked to sign it. 32 The new Child Protection Policy was prepared in conjunction with a representative from the Management Committee to be tabled at the next Management Committee meeting on 28 July 2008. 33 On the morning of 29 July 2008, Ms Reid collected her mail. Included was a letter terminating her employment effective immediately. To ensure adequate supervision of the children she completed her work for the day. 34 Ms Janelle Lee stated that she had been an employee of the Woodenbong Central School as a teacher since 1992 and a member of the Woodenbong Preschool Kindergarten Management Committee since March 2008. She said she was appointed to the extra ordinary Committee that was convened to address the incident that occurred on 26 March 2008. 35 She was aware that on 1 April 2008 DOCS did a spot check at the preschool and on 9 April 2008 Ms Reid reported to DOCS a matter that had occurred at the preschool on 26 March 2008. 36 Post 9 April 2008 the Vice President of the Management Committee made a complaint concerning the handling of the incident and the delay in reporting the matter. Ms Lee understood that the same person complained to the President of the committee and to DOCS. 37 On 12 April 2008 an extra ordinary Management Committee was held where a further committee was developed out of the general Management Committee. At the time of the incidents there were 10 committee members 6 of which were involved in the extra ordinary committee meeting.

[15]

Ms Downham and Ms Mason (secretary of the Committee) would carry out the interviews. 38 The interviewing of all the persons did take place. 39 A couple of days later the committee reconvened. Ms Lee said that they should seek legal advice. Ms Downham stated that she had received legal advice and that it was not a problem to terminate Ms Reid. Ms Downham said she would seek Ms Reid's resignation prior to the next Management Committee. If her resignation was not forthcoming then her employment would be terminated by the Committee. 40 Prior to the committee meeting Ms Lee said that she rang DOCS and CCSA to complain about the process. It was her view that the Committee was too close to the situation, given that the complainant was both a parent and Vice President of the Committee as well as the relieving Deputy Principal and direct supervisor of two of the extra ordinary Committee members as well as an executive to her. She also believed there was a lack of clear guidelines in the preschool's child protection policy, DOCS and other Government information and guidelines for dealing with this sort of incident. 41 Ms Lee said that she spoke to Ms Rutledge from DOCS on 19 May 2008 who said words to the effect "I do not think that Christine's conduct is serious enough to warrant dismissal." This view had been already given to Ms Downham by Ms Rutledge along with other alternatives. Ms Lee said that Ms Rutledge could not do anything herself but suggested that the grievance procedure of the preschool be followed. She also suggested that the use of a mediator and a counsellor to assist. Ms Rutledge later rang back with a list of mediators. 42 Ms Lee said she also rang CCSA where she expressed similar concerns over the process and the conflict of interest that existed between various committee members and the Vice President of the committee in their outside employment at the school plus the lack of clear guidelines in the Preschool's child protection policy, DOCS and other Government information and guidelines. 43 Ms Lee stated that the Vice President of the Committee had on several occasions spoken to her at school stating that Ms Reid should be terminated. 44 Ms Lee said she attended a meeting at the Kyogle Council Chambers on 22 May 2008. After Ms Reid and Ms Jardine had left the meeting the option of using a mediator was discussed but nothing came of it. 45 Ms Lee stated that another meeting was held on 18 June 2008 to discuss the legal advice Ms Downham had received. Present at this meeting was the Vice President. 46 As a consequence of an email received from DOCS outlining the discrepancies in some of the preschool's policies and as the President of the management committee had recently resigned Ms Lee said that she completed the work to address the issues. She also drafted letters to the parents of C2 and C3 apologising for the incidents. She sought confirmation of the appropriateness of the contents of the letters by an appointment with Legal Aid in Lismore on 17 July. Legal Aid also advised that dismissal of Ms Reid was not the appropriate pathway. 47 Ms Lee stated that a meeting was held at lunchtime on 25 July, which resulted in a termination letter being sent to Ms Reid. Ms Lee was not told of this meeting as she was at another school that day. 48 There was a General Committee meeting held on the following Monday. No mention of the termination of Ms Reid was made. Ms Reid received her letter the following day. 49 Ms Linda Jean Jardine stated she has been employed as a child care assistant at the respondents preschool since 1991. 50 She stated she witnessed one of the incidents in the bathroom between two of the children on 26 March 2008. On reaching the bathroom she found both children on the floor in the corner with one child lying on top of the other with both hands down the front of the other child's pants. She said she spoke in a calm voice to the two children and asked them to return to the other children. Neither of the children appeared to be harmed or distressed.

[35]

In Ms Downham's opinion the people who attended the meeting of 25 July were representative of the full committee of the preschool. They were effectively the Management Committee of the preschool and to have shared that information with other committee members would have been a breach of confidentiality. 75 Ms Robyn Anne Evans stated that she had been employed by the respondent since 2002 as a teacher. She said she was on duty on 26 March 2008 when Linda Jardine spoke to me describing what she had witnessed between children C1 and C3. The issue was discussed between the two teachers and later in the day a volunteer named Kelly told Ms Evans that she had witnessed an incident between C1 and C2. She told Kelly to speak to Linda. It was agreed that the two incidents should be documented and Ms Jardine wrote down what was witnessed on a piece of paper. 76 Ms Evans stated that the behaviour of C1 had been discussed on a number of occasions before amongst the teachers. 77 At a meeting of teachers on 31 March 2008, the incidents of 26 March were raised and Ms Reid said that she would get everything together and notify DOCS. Ms Evans said that she provided Ms Reid with documents she had in her possession from a recent child protection training course. There was also information from DOCS and CCSA. 78 On 10 April 2008 Ms Evans met with the Vice President of the Management Committee who visited her house because Ms Evans was ill. During that meeting the Vice President showed a report in relation to the incident of 26 March. On the following day Ms Evans spoke with Ms Reid and was surprised to find out that the mother of C3 had yet to told of the incident. On that day Ms Evans recounted to Ms Downham what was happening. It was Ms Evan's view that what was witnessed on 26 March 2008 amounted to an assault. Ms Reid also stated that some aboriginal parents had told her that if Ms Reid was reinstated they would not send their children to the preschool. 79 Ms Sue-Ellen Vallance gave evidence that she works for the respondent as the office clerk. Ms Vallance gave evidence of the means by which the respondent operates with respect to funding and the method by which funding is allocated. In her view a drop in aboriginal children attending the preschool would lead to a drop in funding through the Schools in Partnership Program (SIPPS). 80 In final submissions on behalf of the respondent Mr Young did categories the actions of Ms Reid as serious misconduct. The delay in making a report to DOCS, the failure to advise her employer of what took place on 26 March 2008 and the clear concerns about C1.

[57]

In my opinion, a valid summary dismissal for misconduct needs to be accompanied by the conduct being "wilful" such as to constitute a repudiation of the contract of employment by the employee. I rely on the following authorities in this regard: In North v Television Corporation Ltd (1976) 11 ALR 599 where Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions. The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be "wilful": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (P288). In Day v Lumley Life Limited (1999) 90 IR 70, Hungerford J describes the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. See also Blyth Chemicals Limited v Bushnell 49 CLR 66 and Hunt v Hornsby Shire Council , [2001] NSWIRComm 242. 85 The extent to which an employer must prove the misconduct prior to any summary dismissal was carefully considered by the Full Commission of the Industrial Commission of South Australia in the case of Bi-Lo Ltd v Hooper(53IR 224 at 229): Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it, if it demonstrates that in so far as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at the time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable. 86 In his opening statement Mr Young for the respondent stated that in light of the seriousness in which the legislation takes the risk of harm, the circumstances that arose on 26 March an immediately thereafter in the kindergarten's case, that was alone a sufficient breach of trust between the employer and the employee that it warranted dismissal. The object of the legislation was to provide care and protection as necessary for the safety, welfare and wellbeing of the children. There was a clear requirement as per her contract of employment for Ms Reid to communicate to management what had occurred. 87 Factually there is little difference between the parties. Two separate incidents occurred on 26 March 2008 involving C1 and two other children C2 and C3. As I understand the children were aged 3 to 4 years of age. The witness to one of the incidents reported as to what she had seen to Ms Reid on the afternoon of the same day when Ms Reid returned to the preschool. 88 The witness to the other incident, Ms Mundine who was a volunteer, had already left for the day by the time Ms Reid had arrived at the preschool and therefore did not get to speak to Ms Mundine until the next time she was at work which was a couple of days later.

Busway v Johnson - [2009] NSWIRComm 1002 - NSWIRComm 2009 case summary — Zoe

At a glance

Court

Decision date

Source

Judgment (91 paragraphs)

Parties

Cases Cited (11)