Emma Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre [2019] FWC 3249

[2019] FWC 3249

Emma Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre [2019] FWC 3249 | Case summary | Zoe

[46]

[31] Ms Cox said that on 4 May 2018 around 10.30am, Ms Currey had come to see her. She was in a very emotional state and said she was 'too upset to be here' and was going home. On 6 May 2018, Ms Currey provided a doctor's certificate absenting her from work until 14 May 2018. However, on 10 May 2018, she resigned. Nevertheless, on 14 May 2018, she attended the Centre and answered the set questions put to all staff by Ms Cox about the incident on 2 May 2018.

[32] Ms Cox could not recall if the applicant had asked for notice of the meeting and details of the allegations when she rang her to confirm the 5pm meeting with Mr Stapleton on 4 May 2018.

[33] In response to the applicant's evidence about the Room Leader's meeting on 3 October 2017, Ms Cox said the staff had collectively discussed strategies to deal with children exhibiting challenging behaviours. The direction was to distract the child by asking them to help in another room or assist in a particular task. Isolating a child was never be used to punish or belittle the child. Staff were reminded of the Centre's policies in this regard.

[34] Mr Stapleton responded to the applicant's evidence as follows. He could not recall if, on 3 May 2018, it was he, or Mr Hill, who had asked the applicant if they could change anything, would she reconsider her resignation. He claimed he later gave her a description of the complaint. She did not respond, or indicate she would not attend the meeting at 5pm the next day. Mr Stapleton said he was not aware of any refusal to provide the applicant information (about the allegations).

[35] Mr Stapleton said he would never allow a process where challenging behaviour resulted in a child being removed from their friends. The Regulations require a 'circle of security' in which children are provided with support, and not through intimidation or exclusion.

[36] Mr Hill was in the car with Mr Stapleton when they called the applicant about her resignation on 3 May 2018. He could not recall whether they asked her to stay. However, she was critical of Ms Cox. In the later phone call, Mr Hill said that Mr Stapleton did most of the talking, including giving her an explanation of the allegations.

[37] Mr Foster said that to the best of his recollection, Ms Leach was not in the Junior Preschool Room at the time of the incident on 2 May 2018.

[55]

[41] It was Ms Cox's evidence that there was a vast difference between the staff's discussion in October 2017 about processes to deal with challenging children and what the applicant had done in physically taking a child into a room under protest. Mr Davis took Ms Cox to the answers given by the three witnesses in their interviews and the number of inconsistencies in their recollections and with the letter of termination. The dismissal letter said she 'forcibly removed a child', whereas Mr Foster agreed with the applicant that she had picked up the child. Ms Cox was taken to other inconsistencies; for example, Ms Whitely said she did not hear yelling; the applicant appeared to carry the child, she did not notice where his arms were and the applicant knelt down to speak to the child. She and another witness had said the child was in the room for no more than 30 seconds, not 5 minutes.

[42] Ms Cox explained that the time frame was not important; it was the manner in which 'G' was forcibly taken to another room, if he was arguing and upset. Ms Cox conceded that children crying at the Centre was a daily occurrence and it does not, in and of itself, disclose anything else. Ms Cox believed the 30-second estimate may have been because Ms Whitely was not fully focussed on the incident. Ms Cox agreed that if the child had been picked up after engaging in rough play, this would be appropriate. However, this was not the issue - he was dragged into a room, where he did not want to go. Ms Cox accepted that the applicant's hands would have been occupied, if she was carrying the child. Ms Cox conceded that the statements conflicted 'to a degree'. She accepted her report did not identify any weighing up of these differences (in recollections).

[43] Ms Cox said that the witnesses described an incident which did occur and which was assessed as inappropriate. She stressed that three witnesses saw the applicant forcing the child through the door. This behaviour was unacceptable, and put a child at risk. Ms Cox agreed that none of the witnesses described 'G' as being in an 'exclusion' area, despite having all been trained on the issue. The only person who claimed there was yelling was Mr Foster. This was accepted and referenced in the termination letter. Ms Cox conceded that the evidence as to yelling was inconsistent, albeit adding that 'there was enough consistency'. Ms Cox finally assumed that the nature of the incident must have involved yelling. She believed that the other five witnesses may not have heard yelling, because Ms Curtis and Ms Stephens were not in the same room.

[44] In re-examination, Ms Cox said that the applicant would have been well aware of the Centre's policies and procedures. Ms Cox also understood Ms Currey was a close personal friend of the applicant.

[45] In cross examination, Mr Stapleton said when he first read the anonymous complaint, he went to the child care law and Regulations and determined that forcing a distressed child into another room and yelling at him, was unreasonable discipline and as such, must be reported to the Department within 24 hours. Mr Stapleton insisted he had told the applicant in the phone call of 3 May 2018 of the details of the allegations. He conceded that her request for the allegations in writing was not unreasonable. However, as she was still an employee at the time, she was invited to a meeting to put her position, but had refused. Mr Stapleton agreed the allegations could have been emailed to her. He accepted that an 'accusation' is the same as an allegation. However, Mr Stapleton believed her request for 24 hours' notice of a meeting was not a reasonable request.

[46] Mr Stapleton said he did not need Ms Currey's statement (provided 11 days later) to make his decision, because there was enough evidence ('in my eyes'). Mr Stapleton claimed the applicant refused to attend a meeting and refused to take phone calls from him and Ms Cox. He claimed he had legal advice (Mr Morphett) that 24 hours' notice for a meeting was not required for a disciplinary meeting.

[47] Mr Stapleton attempted to explain that he had two responsibilities; firstly, to notify of the serious allegations and secondly, to decide whether the applicant should be dismissed. The long delay to the 14 May 2018 (when Ms Currey's statement was made), had made a difference, because a full Investigation Report was required for the Regulator.

[48] Mr Stapleton believed that his decision to dismiss the applicant was not about taking a balanced view, but making a judgement about probable cause and satisfying the Department that he, as the approved provider, was taking all reasonable care to protect children. He said there was nowhere in the Regulations which required 24 hours' notice of a disciplinary meeting.

[49] Mr Stapleton said that although he had booked flights out of Dubbo on Saturday 5 May 2018, he would have cancelled his flight, if the applicant had agreed to a meeting on Monday 7 May 2018. He agreed there was nothing stopping him making arrangements to meet the applicant over the weekend (5 and 6 May 2018).

[50] Mr Stapleton accepted that in the staff interviews, it was only Mr Foster who had said the applicant was yelling. When others (Mr Stapleton and Mr Whitely) said they heard no yelling, this was probably right, because they were in the next room, with the door closed. Further, Mr Stapleton agreed no witnesses had said the applicant placed the child in an 'exclusion spot'. However, this was understood to be the other room. Mr Stapleton agreed that the employees had been trained as to what was meant by an 'exclusion spot'. He denied this finding, as recorded in the termination letter, was unsound.

[51] Mr Stapleton agreed that he had spoken to at least one parent after the applicant's dismissal, but could not recall if he spoke to the three parents identified by Mr Davis. He denied speaking to four parents. The only one he spoke to was one parent who had been concerned about staff turnover, arising from Ms Currey's resignation and the applicant's dismissal and was considering removing her child from the Centre. He explained to the parent that a serious allegation had been made, it had been investigated and the applicant had been dismissed.

[52] Mr Hill reaffirmed that in the phone call on 2 May 2018, he could not recall if anything had been said to the applicant about withdrawing her resignation, if changes were to be made at the Centre. As to the later conversation, he recalled Mr Stapleton saying there were serious allegations against the applicant.

[53] In cross examination, Ms Curtis insisted that she heard the applicant say to 'G', 'stop acting like a baby' and that he was left in the room for five minutes. Ms Curtis agreed Ms Cox helped her prepare her statement.

[54] Ms Stephens reaffirmed that she heard the applicant say to 'G' 'you can't come back until you stop crying.' She claimed that 'G' was left in the room for what seemed like 'roughly' five minutes, but that she did not look at a clock.

[55] In Mr Foster's cross-examination, he claimed he heard the applicant using a 'raised voice' when she twice said to G 'calm down or I will take you next door'. He equated a 'raised voice' to 'yelling'.

[56] Mr Foster acknowledged that the applicant did speak to him about receiving packages personally addressed to the workplace. She had also raised some behavioural issues with Mr Foster's son, who was also a student at the Centre. They had discussed his son getting more and more disruptive and having difficulty concentrating. It was suggested he be seen by a paediatrician and tested for ADHD. He did this, as well as taking him to see a speech pathologist. It was suggested they might look for a smaller service, where he could be calmer in himself, as he was having difficulty with the number of children at the Centre. Subsequently, Mr Foster removed his son from the Centre. Mr Foster also agreed that Ms Cox had spoken to him early in the year about leaving work early. Mr Foster conceded he had filed the anonymous complaint. However, he rejected the suggestion he wanted to get back at the applicant for what had happened with his son. He claimed he had no issues with the applicant.

[57] In examination in chief, the applicant described the incident with 'G', which I set out below:

[57]

[58] The applicant agreed 'G' was upset. However, this is an everyday, usual occurrence for childcare workers. She denied yelling or raising her voice at 'G'.

[59] The applicant believed that Mr Foster 'wasn't impressed with me', as a result of her speaking to him about personal packages sent to the Centre, and because she had spoken to him about his son's behaviour at the Centre. She believed Mr Foster's son might be on the 'autism spectrum' and suggested he be assessed. Mr Foster was not very happy about this. She was able to make this observation because Mr Foster's son has been in her room for six months. Shortly after Mr Foster withdrew his son from the Centre. There were also issues with Mr Foster concerning food preparation, his time management and leaving early. She understood Ms Cox may have raised these concerns with him.

[60] In cross examination, the applicant said that in the second phone call with Mr Stapleton and Mr Hill on 3 May 2018, she had been told there was a serious allegation. She was stood down and told to hand in her keys and would be told more the next day. She said the conversation was with Mr Hill, not Mr Stapleton. She was not told any details of the allegations. The next day, she learnt from co-workers that the allegation was that she had moved a child to another room. The applicant said she did not want to attend a disciplinary meeting to be 'ambushed'. All she was told from her co-workers was that a child had been removed from a room.

[61] The applicant claimed that children were frequently removed to other rooms (sometimes twice a week), particularly when a child is behaving aggressively towards the educator. This is so because the educator cannot leave the room, with the other children unattended. The applicant agreed that 'G' grabbed onto the door and it probably indicated he did not want to be there. However, the procedure is to pick up the child and move them to another room to calm down. The doors were not shut, because he followed her back.

[62] In answer to questions from me, the applicant said she had not started at the new job at Redgum Childcare, because they had found out about the incident and 'held off', until it had been resolved. Nevertheless, she had commenced employment at a different job on 10 September 2018. She had no income for eight weeks until this time.

[63] Ms Leach gave evidence under an Order Requiring a Person to Attend the Fair Work Commission (Form F51). Ms Leach said that on 2 May 2018, she came back from lunch, just at the end of the incident involving the applicant and 'G'. She said that when Ms Cox interviewed her, she had not been aware of any wrongdoing. However, when they discussed it, she 'started to remember what happened.' She said there was no yelling. Ms Leach said the date on her email to the applicant (2 May 2018) she sent a week later, was the date of the incident. She had sent her email at 5.15pm on 9 May 2018.

[64] In cross examination, Ms Leach said that all she saw was the applicant shut the doors and then open them and bring 'G' back to the room. Mr Foster was not present at this time. Earlier, through the window, she had observed 'G' hitting the applicant. The applicant had picked him up. Ms Leach did not see him being physically put into the next room.

[65] In Ms Currey's oral evidence, she reaffirmed what she observed in the incident and said that what the applicant did was the process usually followed, as had been directed by management. Ms Currey said that although the child did not want to go to the other room, the applicant only placed him inside the door. 'G' then followed her back, so he was not left there. Ms Currey added that the child had been difficult before, but was 'getting a bit rough lately.' As to her belief the allegations against the applicant were false, Ms Currey said:

[59]

[66] Mr Morphett agreed that the only matters relevant to this case was whether the applicant's dismissal was 'harsh, unjust or unreasonable', and while not conceding it was, if the Commission found otherwise, what was the appropriate remedy?

[67] As to valid reason, Mr Morphett put that the respondent diligently undertook an investigation of Mr Foster's anonymous complaint of the incident on 2 May 2018, and had concluded that the witness statements of six staff were consistent. He put that any inconsistencies in their statements were related to where they were positioned in respect to the incident, and what they could have seen or heard at the time. Despite the applicant being invited to be interviewed and meet with Mr Stapleton, she refused to do so. Mr Stapleton had concluded that 'the applicant removed a child from his usual area of care to another area as a disciplinary action due to his behaviour'. As a result, Mr Stapleton had an obligation as the licensed provider to report the incident to the Regulator and investigate whether the incident occurred, and if so, what measures would be taken to ensure such an incident did not occur again. This was the primary purpose of Ms Cox's Investigation and Report.

[68] Mr Morphett set out Mr Stapleton's obligations under the Education and Care Services National Law (the 'Law') and the Education and Care Services National Regulations (the 'Regulations') and the consequences of him not complying with the Law and the Regulations. Mr Morphett claimed that the Regulator's (or Department's) only focus is to be notified within 24 hours of the incident and if it occurred, what steps the provider took to ensure the incident is not repeated. This information was provided to the Regulator.

[69] Mr Morphett submitted that while the allegations were found to be proven, on the balance of probabilities, even on the applicant's own version of events (the child grabbed the door and his hand had to be forcibly removed to proceed to the next room) was sufficient to demonstrate a non-consenting child had been moved, as an act of discipline, rather than a procedure adopted to distract a misbehaving child.

[70] Mr Morphett claimed it defied reason why the applicant would not ask about the allegation, even though she knew it apparently involved moving a child to another room. Further, it was troubling why she wanted the allegation in writing so as not 'to be ambushed' (although he did not elaborate).

[71] Mr Morphett submitted that the applicant's behaviour constituted serious misconduct, as it was deliberate behaviour that caused 'a serious and imminent risk to the reputation, viability or profitability of the employer's business.' Further, the applicant had refused to carry out a lawful and reasonable instruction to assist the employer in addressing issues of concern regarding the incident.

[72] Mr Morphett submitted that the applicant's refusal three times to attend a meeting was a decision she made at her own peril. Given the gravity of the allegations, it was not unreasonable for Mr Stapleton to insist she meet him. Further, the applicant had an opportunity to respond at any time on 4 May 2018. She had produced no evidence as to why she could not do so. This was a refusal of a lawful direction. Mr Morphett said the applicant was never denied any opportunity to bring a support person to a meeting.

[73] Mr Morphett claimed the employer was familiar with its responsibilities and was able to 'administer and discipline staff' effectively and in accordance with the Act. Lack of HR support had a negligible effect.

[74] In addressing s 392 matters, Mr Morphett said that depending on the amount of compensation the Commission may order, the respondent may seek leave to demonstrate it should be paid in instalments. The applicant had short service (23 months) and given her resignation was to be effective on 31 May 2018, and she had been on paid suspension until 7 May 2018, the period of any likely future employment was only 18 working days. According to the Sprigg formula, calculating that period at $29.65 per hour at 37 hours for 18 days equals $4002.75. There should be a contingency deduction of 25% ($1,000.69) and deductions for the tax free threshold and an entitlement to the Medicare levy rebate ($739.03), leaving a balance of $2,263.03.

[75] Mr Morphett added that efforts by the applicant to mitigate loss were a neutral factor. All other considerations under s 392 of the Act were either neutral or irrelevant.

[60]

[76] By reference to the applicant's termination letter, Mr Davis submitted that the specific allegation cannot be supported by the facts, as witnesses disagree on key aspects of the incident on 2 May 2018; namely:

(a) all witnesses agree the applicant picked up the child, which is consistent with the Centre's policy in these circumstances;

(b) none of the witnesses said the child was taken to an 'exclusion spot';

(c) the witnesses disagree as to how long the child was left in the adjoining room. The estimates ranged from a second, to 30 seconds to 5 minutes. No one checked the clock;

(d) only one witness claimed the applicant yelled at the child and even he (Mr Foster) said a raised voice equated to yelling;

(e) Ms Cox agreed a crying child is a frequent occurrence in a child care centre;

(f) only Mr Foster used emotive language to describe the applicant grabbing the child or 'reefing the child' (in his anonymous complaint). His evidence should be viewed with scepticism, given he was the complainant and had a reason to be unhappy with the applicant; and

(g) none of the other witnesses said the applicant used force to remove the child.

[77] Mr Davis submitted that the Commission would conclude that there was no yelling, no exclusion and no threats. The applicant's approach to a misbehaving child was unremarkable in a child care environment. Accordingly, there could be no 'sound, defensible or well-founded' reason to dismiss the applicant. There was no valid reason to do so.

[78] Mr Davis traced the events immediately after the applicant was stood down. Despite the applicant seeking written details of the allegations and 24 hours' notice of a meeting, this was refused and she was summarily dismissed by email on 7 May 2018. Mr Davis noted that Ms Cox's investigation even continued beyond that point. The investigation was shambolic, incomplete and biased.

[79] The views of Ms Currey and the applicant were not taken into account and this was a denial of procedural fairness. Moreover, the applicant was given no reasonable opportunity to respond to the allegations, despite Mr Stapleton now agreeing it was reasonable she be provided the details of the allegations in writing.

[80] Mr Davis noted the applicant had no previous warnings. The size of the business and the procedures followed make clear the dismissal was no accident; rather, it was enacted by design. Mr Davis submitted the applicant's dismissal was already determined by Mr Stapleton, who took a personal stake in the situation. He ignored proper procedural steps, was angry and persisted in directing the applicant to attend a meeting he knew full well, she was not prepared for. His view was backed by Ms Cox's incomplete investigation and they both decided that the other witnesses' versions of events were consistent, when they clearly were not.

[81] As to remedy, Mr Davis noted that the applicant's original job offer was withdrawn, which left her eight weeks out of work until securing alternative employment at Stepping Stones. Accordingly, the applicant sought 8 weeks' pay, comprising of 37.5 hours at $25.65 an hour, totalling $8,895.00 and loss of accrued annual leave being a total of $9,636.25.

[67]

[84] As I have just concluded that three of the above criteria have been satisfied ((a), (c) and (d)), this only leaves the question of whether Ms Horan's dismissal was 'harsh, unjust or unreasonable' and therefore an unfair dismissal. To this end, one must direct attention to s 387 of the Act, which deals with the matters to be taken into account by the Commission in determining whether a dismissal was unfair. It is trite to observe that each of the matters must be considered, and a finding made on each of them, including whether they are relevant or not; ss (e) concerning warnings of unsatisfactory performance is usually not relevant in serious misconduct cases.

[85] The matters to be taken into account under s 387 of the Act are:

(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 the FWC considers relevant.

[86] All of the criteria in s 387 of the Act must be taken into account when the Commission considers whether a particular dismissal is unfair. The notion of 'taking into account' a matter (such as those described in s 387 of the Act) connotes a genuine consideration of the relevant section and the apportionment of the appropriate weight of each criterion in the circumstances. In Construction, Forestry, Mining and Energy Union v Hamberger and Another [2011] FCA 719; (2011) 195 FCR 74, Katzmann J pointed out that '[t]o take a matter into account means to evaluate it and give it due weight' and that 'mere advertence will not be enough'. That said, it must also be steadily borne in mind that all of these matters must be considered in totality. That this is so is obvious from the Explanatory Memorandum to the Fair Work Bill 2008 where at para 1541, it reads:

[154]

[103] In my opinion, there was no serious challenge to the applicant's version of events of 2 May 2018. Nor was Ms Currey's corroborative evidence undermined in cross examination. To the extent that I could be comfortably satisfied that Ms Cox's investigation justified a positive finding of misconduct, on the balance of probabilities, it fell well short of that mark. Putting aside the many inconsistencies in the supposed consistent statements of the witnesses (Ms Curtis, Mr Stephens and Mr Foster, in particular), to draw a conclusion of overall consistency, without taking into account any explanation from the applicant or Ms Currey, must result in a seriously flawed investigation, which manifested an injustice. The applicant's career in childcare might have been irreparably damaged, if not destroyed. I intend to correct such an injustice. Mr Davis provided a useful evidence matrix which plainly demonstrated the inconsistencies in the 'consistent' evidence. These included:

(a) Whether the child was picked up and carried, or forcibly pulled by the arm or pushed through the door.

(b) Whether the child was in the other room for about 5 minutes or 30 seconds and whether he followed the applicant back.

(c) Only one person said the applicant was yelling (Mr Foster).

(d) Significantly, despite all staff being trained as to not isolating a misbehaving child in an 'exclusion spot', and a specific question in their interviews, no witness described the applicant's placement of 'G' as being to an 'exclusion spot.'

[104] To my mind, Mr Foster's version of events was intended to cast the applicant in the worst possible light. Until Mr Foster's cross examination, it was not disclosed he was the anonymous complainant. On crucial issues, Mr Foster's evidence was inconsistent with almost everyone else, or was embellished or exaggerated by the recent unpleasant incidents involving the applicant. It is not apparent whether Mr Stapleton or Ms Cox knew Mr Foster was the anonymous complainant, or were aware of a possible motive he had for lodging the anonymous complaint, including him withdrawing his son from the Centre. If they did, they most certainly did not take this into account. It is clear he did not disclose that he was the anonymous complainant to Ms Cox during her investigation.

[105] It seems to me that, at best, one must consider Mr Foster's highly negative statement from the standpoint that he had to ensure that his complaint stood up to scrutiny, otherwise he might be in trouble for making false allegations. At worst, it might be said he was motivated by mala fide intent, to overly dramatise a common workplace incident in a child care centre, in order to damage the applicant, the Centre or both. It is unnecessary for me to make direct findings in this respect, as I am satisfied his statement and oral evidence, where it conflicts with the applicant and Ms Currey, is not to be preferred. I make no adverse findings against Ms Curtis, Ms Stephens or Ms Leach, as I am satisfied that they were doing their best in a difficult and pressurised situation. Further comment as to Ms Cox's and Mr Stapleton's evidence, will be discussed shortly; suffice at this point, to say that I do not accept that Mr Stapleton or Mr Hill told the applicant the details of the allegations in the 4.30pm phone call on 3 May 2018. I accept the applicant's evidence in this respect.

[106] In my view, Mr Stapleton's confusing evidence as to why he did not take Ms Currey's statement into account, was really because he wanted to demonstrate to the Regulator that he had taken swift and decisive disciplinary action against the applicant, so as to not place his accredited provider licence in jeopardy. In doing so, he may have satisfied his own conscience and the Department's requirements, but he did not afford to the applicant her rights as prescribed by the Fair Work Act. There was no reason for a rush of judgement and a subsequent dismissal. Indeed on one view, the investigation was ongoing for at least another 9 days, until 14 May 2018, when Ms Currey was interviewed. If the investigation was as thorough and complete as Mr Morphett submitted, it was utterly irrelevant to interview Ms Currey, when her evidence would not have made a skerrick of difference (and did not anyway).

[107] On my reading of the Regulatory mandate, Mr Stapleton was only required to notify of the incident within 24 hours. He went further by advising of the applicant's suspension and of an investigation having been commenced. Far worse, he rushed to judgement, without affording the applicant natural justice. There was no legal, ethical or logical reason to do so. He could have, for example, kept the applicant on suspension, accepted her reasonable request for 24 hours' notice of a directed meeting and provide her with the details of the complaint by email. These are the usual and orthodox steps taken in employment situations such as this. It is true, as Mr Stapleton put, that there is nothing in the Regulations requiring 24 hours' notice to be given to a person about whom a complaint has been made. However, Mr Stapleton confuses his separate obligations under s 387(c) of the Act, to afford the applicant a (reasonable) opportunity to respond to the allegations. The notice given was not reasonable, and even less so given that she was not provided with the actual details of the allegations in writing (or at all).

[172]

[115] I make the following observations and findings. In my view, Ms Cox's investigation process was so flawed and hastily conducted and finalised, that I am left with little alternative but to find that the applicant was denied procedural fairness on a wide scale. For example:

(1) she was denied 24 hours' notice to arrange a support person to attend any meeting to discuss the matter;

(2) she was not provided with details of the anonymous complaint at the time, or any time subsequently; let alone provided with the details of the allegations, in writing;

(3) Ms Cox maintained her and Mr Stapleton's decision to dismiss was based solely on witness accounts which were said to be consistent. Putting aside my conclusion that the accounts were not consistent at all, it would have been reasonable to assume that both the applicant and Ms Currey might have provided accounts which would challenge the claim of consistency. This opportunity was denied to both of them;

(4) it was hasty, unrealistic and unreasonable to form a considered view as to the applicant's dismissal, one business day after the staff interviews, particularly as the applicant was not given a reasonable or fair opportunity to respond;

(5) why Ms Cox believed it was necessary to interview Ms Currey a week after the applicant's dismissal, is difficult to fathom. The fateful decision had already been made and there was no evidence from the respondent that had Ms Currey's version of events cast a different light, or at least demonstrated inconsistencies with the other staff interviews, that it would not have made a jot of difference;

(6) there was no reference until her oral evidence, that Ms Cox doubted Ms Currey's truthfulness or doubted her recollections due to her assumed emotional state at the time;

(7) Mr Stapleton's evidence was that the applicant refused to attend a meeting. This is incorrect and misleading. The applicant had requested 24 hours' notice and she was never given any such notice at any time, despite a period of 11 days before Ms Currey's interview. In any event, why would the applicant return phone calls when all the respondent had to do was give her 24 hours' notice by email while she was still employed. Overarching all of this was Mr Stapleton's concession, in oral evidence, that 24 hours' notice of the meeting, was a reasonable request.

At a glance

Court

Decision date

Source

Judgment (233 paragraphs)

Emma Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre [2019] FWC 3249 (27 May 2019)

Parties

Legislation Cited (6)

Cases Cited (11)