Meu o/b Gray & Fairfield City Council [2003] NSWIRComm 1077 (17 December 2003)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Industrial Relations Act 1996

Application by J Gray pursuant to section 84 of the Industrial Relations Act 1996 re alleged unfair dismissal.

This matter involves an unfair dismissal claim made by way of an application taken pursuant to section 84 of the Industrial Relations Act 1996, (the Act). The application was filed on 18 May 2001 by the Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division (the MEU). The application was made on behalf of Janelle Roslyn Gray (the applicant), and named the respondent employer as Fairfield City Council, (the employer).

Conciliation proceedings were held on 6 July 2001, and further attempts to resolve the matter by way of conciliated settlement were undertaken during proceedings held on 26 September 2001. The matter remained unresolved and has ultimately proceeded to Hearing involving seven separate days. The Hearing of the matter included proceedings on: 18 and 19 October 2001; 12 and 13 February 2002; 8 and 9 May 2002; and 29 October 2002.

At the conclusion of proceedings on 29 October 2002, the applicant's oral submissions had not been completed. At that time the Commission fixed a time table for the Parties to file and serve written submissions. The filing of written submissions was ultimately finalised by way of the filing of the applicant's reply to the respondent's written submissions on 10 February 2003. As a consequence of an administrative oversight, the Commission as constituted, was not advised of the filing of the applicant's written submissions in reply until 18 November 2003. Consequently the Determination of this matter is now made.

The applicant is a female who was some thirty two years of age at the time of her alleged unfair dismissal on 29 May 2001. It should be noted that the application filed on 18 May 2001 preceded the dismissal of the applicant. The application was initially filed in respect to a threatened dismissal, and that threatened dismissal became an actual dismissal in the period between filing of the application and the first conciliation proceedings held on 6 July 2001.

The applicant was employed as an Early Childhood Teacher and had been employed for a period of a little more than 6 months.

The applicant worked in three different child care facilities which were operated by the employer. The applicant initially worked in a child care facility located at Cabramatta, and then she was transferred to a childcare centre at Canley Vale. The applicant was next transferred to work at a childcare centre located at Wetherill Park.

The applicant was working at the Wetherill Park Early Learning Centre when, on 9 May 2001, she was suspended on pay from duty. The applicant was suspended from duty as a consequence of an incident that occurred on the preceding Friday, 4 May.

The applicant had been involved in an incident at approximately 5.00 pm on Friday 4 May. This incident involved a child by the name of Reece who attended the childcare centre on that day. The incident involving the applicant and the child Reece occurred at the time when Reece's mother attended the Wetherill Park centre to collect Reece. The incident involving Reece is discussed in more detail later in this Decision. On Monday 7 May, Reece's mother and the mother of another child who attended the Wetherill Park Centre, made complaint about the incident involving the applicant and Reece which occurred on the previous Friday.

Various of the employer's supervisory and managerial staff investigated the issues surrounding and arising from the complaints made by the two mothers that had expressed concern regarding the incident with the applicant and the child Reece that occurred on 4 May 2001. The investigations involved matters relating to the incident on 4 May, and also included previous incidents which were alleged to have involved the applicant in matters of a similar nature to that which was represented by the incident on 4 May.

There were four alleged incidents which became the subject of the employer's investigation and which included the incident involving the child Reece on 4 May. The other three incidents were alleged to have occurred, in respect of the first instance, at some time in early February of 2001, and in respect of the second and third incidents on 1 March and 4 April 2001 respectively.

Following the employer's investigation into the four identified incidents, the employer concluded that the applicant had committed various acts of misconduct sufficient to warrant dismissal. The applicant was dismissed on 29 May 2001 for misconduct, and paid only up to that time. Although it was the subject of some conflicting submissions made on behalf of the employer, the effect of the actual circumstances of the applicant's dismissal on 29 May 2001, was that of a summary termination for misconduct relating to the four identified incidents.

The applicant has asserted that her dismissal was unfair and has sought monetary compensation as appropriate remedy.

There were two significant and interrelated aspects of the evidence presented in this matter. There was a significant amount of irrelevant and unnecessary evidence provided during the course of the protracted proceedings. In large part the additional and unnecessary evidentiary material and the time associated with the presentation of that unnecessary material, arose from the alarmingly inadequate construction of the primary evidentiary material advanced on behalf of the employer.

The employer sought to rely on a series of documents that were filed on 26 September 2001, which represented a proforma style witness statement of two or three paragraphs which referred to various attached documents. The attached documentation in many instances was duplicated between the various alleged witness statements and in many instances the deponent of the witness statement was not the author of the attached documentation. The Commission made severe criticism of this inappropriate and seemingly indolent approach to the presentation of the employer's primary evidentiary material.

Against the strong protests of the applicant, the Commission admitted the employer's material as evidence. However given the construction of most of the employer's primary evidentiary material, the applicant's representative adopted a cautious and expansive approach to the cross-examination of the various witnesses that were called to provide evidence on behalf of the employer. Unfortunately this contributed greatly to the protraction of the proceedings and, with hindsight, it may have been a quicker process for the employer's material to have been rejected and to have required fresh material to be refiled on another occasion.

Therefore, regrettably, the matter has involved a disproportionate amount of time and volume of evidence in comparison to the fundamental issues requiring Determination. The fundamental elements of this matter were Determined at an early stage of proceedings. The matter involved the summary dismissal of the applicant on the basis of alleged misconduct arising from four identified incidents, the most recent of which involved the child Reece and which precipitated the investigation and subsequent dismissal.

At an early stage of proceedings it was recognised that the employer would be required to establish the basis upon which the misconduct of the applicant was alleged to have been proven. Even upon a cursory examination of the documents regarding the basis upon which the employer sought to have established the alleged misconduct, it would be clear that the evidentiary onus had not been met by the employer. It is therefore highly regrettable that the matter has not only proceeded to Hearing and Determination but that the proceedings have been protracted and the evidence expanded to unrealistic proportions.

There were seventeen witnesses called to provide evidence in this matter. The applicant and four other individuals were called as witnesses in support of the claim. The employer called a total of twelve witnesses.

Much of the evidence involved conflict in recollection of specific details of the four identified incidents. In many instances the conflict in the evidence was identified as a direct factual contest as between the evidence provided between the applicant and one or more of the witnesses for the employer. However in many instances factual conflict can be identified as between the different recollections deposed by the various witnesses called to provide evidence on behalf of the employer.

Having regard for the nature of the various factual conflicts that can be identified from the evidence, many of the issues are largely inconsequential and attributable to the understandable differences of recollection and perception that would ordinarily apply to any group of several individuals who were all endeavouring to give truthful evidence. Consequently there can be no adverse findings as to credit on the part of any of the witnesses in this case.

Although I have not been prepared to accept that the applicant's version of particular events was entirely accurate, I do not believe that she deliberately sought to be untruthful or to mislead the Commission. Similarly, although I have not been prepared in all instances, to adopt the version of events as deposed by the witnesses for the employer, I believe that there was no significant deficiency with the evidence provided by any of the employer's witnesses, except for one instance which regrettably I must note.

I have not been prepared to accept that the evidence provided by Ms Shirley Tran was truthful. Ms Tran gave evidence in respect of one of the four identified incidents which were the subject of the employer's investigation and ultimately became basis for dismissal of the applicant. In particular Ms Tran gave evidence about the incident which was first in time and which has been, for convenience, referred to as incident one (1).

Ms Tran presented as a highly excitable character and an analysis of her evidence revealed some regrettable inconsistencies. The Commission can appreciate the anxiety that some witnesses experience when having to provide answers during cross-examination, and I believe that it may have been the level of anxiety and the agitated state of excitement that Ms Tran displayed during the course of her testimony, which gave rise to some conflicting answers.

Consequently I am not prepared to find that Ms Tran was being deliberately untruthful. However the impeachment of the evidence provided by Ms Tran must logically defeat any prospect for incident number one (1) to be substantiated.

There was one further significant feature of the evidence in this case. The decision to dismiss the applicant was made by the employer's City Manager. Unfortunately the City Manager was not called as a witness and did not provide any evidence, and therefore the Commission was at a significant disadvantage as to the understandings that were in the mind of the person that took the decision to dismiss the applicant.

At Hearing the applicant was represented by Mr M Barnes, solicitor. Mr Barnes commenced his oral submissions on 29 October 2002. Unfortunately Mr Barnes was unable to complete his oral submissions and the Commission required that further submissions on behalf of both the applicant and the employer were provided in writing.

Mr Barnes made extensive oral and then supplementary written submissions. The submissions made by Mr Barnes firstly addressed the question of the summary dismissal of the applicant.

Mr Barnes submitted that the applicant had been summarily dismissed and that payment had been made to the applicant only up until the time of dismissal on 29 May 2001. Mr Barnes acknowledged that at one point during the proceedings when the employer was represented by Mr Murphy of Counsel, there had been a suggestion that the employer acknowledged that the applicant was entitled to have been paid an amount equivalent to a further two weeks in lieu of notice. According to the submissions of Mr Barnes, an amount in respect of a period of notice had not been paid and despite any apparent recognition of the requirement to pay such an amount, the dismissal of the applicant should be properly considered to have been summary in nature. Mr Barnes submitted that it was not possible for the employer to subsequently alter the basis for the dismissal by some suggestion that a further payment would be made.

Mr Barnes then made further detailed submissions which examined the allegations that had been made against the applicant. Mr Barnes made submissions which involved a detailed analysis of each of the four identified incidents upon which the allegations against the applicant were based. Mr Barnes then submitted that in respect of each of the four identified incidents there could be no finding that either the incident did actually occur, or that it represented misconduct as the employer asserted.

Mr Barnes submitted that the basis upon which the applicant had been dismissed could not be established. Mr Barnes submitted that the nature of the allegations made against the applicant were serious and had potentially career destroying implications. Therefore according to the submissions of Mr Barnes, the employer was obliged to establish an evidentiary basis upon which any findings that were made regarding the allegations would be commensurate with the severity of the allegations.

Mr Barnes submitted that the employer had not approached the investigation and subsequent determination involving the alleged incidents with any appropriate methodology which would be apposite with the seriousness that would attach to the nature of the allegations. In this respect Mr Barnes submitted that at different stages of the investigation process the question of child abuse had arisen. Although the employer concluded that none of the alleged incidents represented child abuse, Mr Barnes submitted that the suggestion of child abuse would involve obvious potential ratifications for the reputation of the applicant.

Mr Barnes made further submissions which criticised the employer's approach to the onus of proof that it adopted in its investigation into the identified incidents. Mr Barnes submitted that the employer's investigation process essentially reversed the onus of proof and required the applicant to disprove the allegations.

Mr Barnes further submitted that the investigation process adopted by the employer was unfair. Mr Barnes submitted that the investigation into the four identified incidents did not include proper process whereby the responsible supervisory and managerial staff provided equal opportunity for all of those that were either involved directly in the allegations, or providing corroborative evidence, to put their particular knowledge before the appropriate employer officer. Mr Barnes noted that the two mothers that had made complaints regarding the incident of 4 May involving the child Reece, had not been interviewed by the more senior of the employer's officers who were dealing with the investigation, and who ultimately made recommendations for the dismissal of the applicant. This and various other aspects of the employer's procedure were the subject of severe criticism from Mr Barnes. Mr Barnes submitted that the procedure adopted by the employer and which led to findings that the applicant was guilty of misconduct in respect of all four identified incidents, was severely flawed, and that the subsequent decision to dismiss was taken upon such flawed procedure.

Mr Barnes advised that the applicant did not seek reinstatement or re-employment and that particularly as other alternative employment had been obtained, such a prospect would be impracticable. Mr Barnes therefore submitted that the applicant should be provided with compensation, and that the amount of compensation should be of the maximum that would be available.

The employer was initially represented by Mr J McConnell from the Local Government Association of New South Wales. During the course of proceedings Mr J Murphy, barrister, appeared in place of Mr McConnell. Although Mr Murphy attended proceedings on 29 October 2002, at which time the Commission anticipated that oral submissions would be provided by both Parties, only the applicant's oral submissions were taken. The oral submissions of Mr Barnes were not concluded on 29 October, and therefore Mr Murphy did not have an opportunity to commence his oral submissions on that occasion.

The Parties agreed that further submissions would be provided in writing, and the employer's written submissions were subsequently provided by Mr McConnell.

Mr McConnell submitted that the issue as to whether the applicant was summarily dismissed for serious and wilful misconduct, or whether she was dismissed for misconduct of a lesser nature but nonetheless serious and sufficient to justify dismissal with notice, had little significance in the context of the facts of this case. Mr McConnell submitted that the applicant had not made an approach to the employer seeking payment of the amount equivalent to two weeks in lieu of notice that the employer had conceded was payable to the applicant. According to the submissions of Mr McConnell, the failure of the applicant to approach the employer seeking payment in lieu of notice was "instructive", and that it was a "non issue" as to whether or not the applicant's termination was a summary dismissal for serious and wilful misconduct or as the employer conceded, a termination for misconduct in which the applicant would be, and was, entitled to payment of two weeks remuneration in lieu of notice.

Mr McConnell further submitted that the decision of the employer to dismiss the applicant was taken after a thorough investigation into the four identified incidents. Mr McConnell submitted that the applicant was given a full opportunity to put her version of events and that in due course the employer properly formed a view on all the material available to it, that the applicant had misconducted herself in such a manner as to justify her dismissal. Mr McConnell submitted that the employer had responsibilities in respect of the protection of young children and that this should be a relevant consideration in this matter.

Mr McConnell further submitted that the employer's case was not based upon any acts of alleged child abuse on the part of the applicant, but rather that the applicant had in each of the four identified incidents breached the code of conduct as set out by the employer in respect of the employer's operation of child care services. Further, according to Mr McConnell, the employer did properly conclude that the four incidents demonstrated a pattern of behaviour or a tendency on the part of the applicant to act inappropriately with young children. This pattern of inappropriate behaviour rendered her unsuitable for employment in the employer's child care facilities.

Mr McConnell then made further detailed submissions in respect of each of the four identified incidents. According to the analysis of each of the identified incidents as provided by the submissions of Mr McConnell, the Commission should conclude that the employer was entitled to have found that each of the four incidents was proven, and that the nature of the conduct of the applicant represented a pattern of inappropriate dealing with young children such as to represent the misconduct of the applicant. Mr McConnell submitted that the actions of the applicant in respect of each of the four incidents was entirely incompatible with the applicant's role as an Early Childhood Teacher. Therefore according to Mr McConnell the employer had no alternative but to terminate the applicant's employment.

Mr McConnell further submitted that the criticisms of the procedure adopted by the employer should be rejected by the Commission. Mr McConnell said that the employer had conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances. Further, according to Mr McConnell, the employer had provided the applicant with every reasonable opportunity to answer the allegations regarding the misconduct. Following such a process the employer honestly and genuinely believed, and had reasonable grounds for believing, that the applicant was guilty of the misconduct in respect of the four identified incidents.

Finally, Mr McConnell submitted that the concept of "fair go all around" required consideration not only of the interests of the applicant and the employer, but also of the four young children who were subjected to the inappropriate behaviour of the applicant.

As has been mentioned earlier in this Decision, the amount of evidence and the time involved in the Hearing of this matter has expanded greatly beyond the proportion relevant to the essential issues for Determination. The applicant was summarily dismissed on 29 May 2001, on the basis of alleged misconduct. The extent to which the employer failed to discharge the necessary onus of proof regarding the misconduct upon which the dismissal was based, is clearly evident from the following extract from the recommendation made by employer officers and upon which the City Manager apparently decided to dismiss:

"Due to the serious nature of the allegations against Janelle and her inability to provide appropriate indications that the incidents did not occur as per independent reports is intolerable in an employee."

It is clear from the above statement that the employer reversed the presumption of innocence and thereby acted in fundamental, manifest error. The applicant was obliged to "provide appropriate indication that the incidents did not occur". A correct approach would have required the employer to establish, on the balance of probabilities and commensurate with the seriousness of the allegations, that the allegations were proven.

When one has regard for the totality of evidence regarding the approach to the investigation of the four identified incidents, it is clear that the basis upon which the process was conducted involved a reversal of the correct evidentiary onus. That is, the allegations did not require proving upon a requisite level of probability associated with the seriousness of the nature of the allegations, but rather the accused, that being the applicant, was required to disprove the allegations on what became differing levels of probability in respect to the different incidents.

Notwithstanding the fundamentally flawed basis upon which the investigation and decision to dismiss was established, the Commission is required to examine the various incidents in order to ensure that notwithstanding the employer's errors, the conduct might ultimately have been proven on some correct analysis. When one has regard for the nature of the alleged incidents and hypothetically construing the four incidents upon the highest possible contemplation that could be provided to the employer, it would still remain that the conduct, both in respect of the four specific incidents separately and when taken in composite, could not represent gross and wilful misconduct sufficient to justify the summary dismissal of the applicant.

The employer acknowledged that at its highest the conduct of the applicant represented a pattern of inappropriate handling of children. None of the allegations could represent gross and wilful misconduct of a nature necessary to provide for justification for summary dismissal.

Incident one (1) involved an allegation that the applicant placed a child sitting on a chair facing lockers in what was described as a "time out" behaviour modification technique. The allegation regarding this event was raised by Ms Tran. I have been unable to accept the evidence of Ms Tran. There were two particular aspects of the evidence provided by Ms Tran which compelled rejection of her version of the first incident.

Firstly, as was identified by the submissions made on behalf of the applicant, Ms Tran sought to justify the delay in her reporting of the alleged incident by reference to her concerns about providing her supervisor with difficult problems during that particular period in time. However, the evidence of Ms Tran revealed that she approached her supervisor and sought to be transferred to a different workplace at the same time as when she was allegedly withholding report of the incident regarding the "timeout on the chair". It was plainly inconsistent for Ms Tran to have suggested that she did not report the "timeout on the chair" matter because she did not wish to trouble her supervisor yet she asked the supervisor if she could be transferred.

In addition to this inconsistency in the evidence provided by Ms Tran, there was further conflict in her evidence about whether she actually heard the applicant instruct the child to sit on the chair facing the lockers, or whether she only observed the child sitting on the chair. In this respect the evidence initially provided by Ms Tran during cross-examination was to the effect that she could not remember hearing the applicant ask the child to sit on the chair. The following extract from transcript is relevant:

"Q. Just pausing there, you didn't hear Janelle ask him to sit down, did you?

A. Let me think. I'm not - I simply can't remember that Janelle ask or not, but I know it is to get Jia Min to sit down but the word I can't remember. It's a very quick, sir.

Q. So you can't remember hearing Janelle ask Jia Min to sit on the chair.

A short time later Ms Tran was again asked about her memory of any instruction regarding the child to sit on the chair facing the lockers, and the following extract from transcript is relevant:

"Q. That bit's right. Okay. Now, you didn't hear Janelle give any directions to Jia Min to sit on a chair?

Ms Tran's inability to remember any direct instruction to the child to sit on the chair was overcome during the re-examination when she provided the following evidence:

"Q. And then it says, "Which Jia Min was told to sit on"?

A. Yeah, very quick, "Take the seat." [3]

Having regard for the totality of the evidence of Ms Tran and observations earlier recorded about her demeanour during her attendance in the witness box, I am of the view that her evidence must be regarded as unreliable. Therefore there could not be any proper basis upon which to establish the allegation as made out in respect of incident one (1). In any event, and as with regard to the other three incidents, even if they be made out, none of the alleged conduct of the applicant could represent gross and wilful misconduct sufficient to justify summary dismissal.

The evidence regarding incidents two (2) and three (3) is far more supportive of there having been some incident(s) which might represent a questionable action in respect of a professional approach to child care. The evidence in respect of both incidents two (2) and three (3) involved some directly conflicting questions of fact as to precisely what occurred. In many respects the precise detail of each of these incidents cannot be discerned from the evidence provided in this case. However in respect of both incidents two (2) and three (3), even if the conduct of the applicant was taken at its worst, these were not actions that could be construed as misconduct sufficient to warrant summary dismissal.

Incident number four (4) was the event upon which much evidence was provided. This was the incident that precipitated the applicant's dismissal. Notwithstanding the enormous detail that was provided by the extensive evidence about the event on 4 May 2001 involving the child Reece, the conduct of the applicant could not, on any of the various versions of differing detail, constitute gross and wilful misconduct of a nature which would justify summary dismissal.

When the evidence about incident four (4) is considered and analysed in totality, it represented a matter involving a significant professional misjudgement on the part of the applicant. It would have been appropriate and indeed necessary for the employer to have counselled and conveyed concern to the applicant about the incident involving the child Reece. The applicant, with hindsight, would obviously regret having taken the decision to compel the child Reece to pick up the duplo blocks that he had scattered.

The presence of the child's mother may have motivated the applicant to take action that would not have otherwise been contemplated. The applicant may have acted in an endeavour to impress Reece's mother so as to demonstrate the competencies of the staff engaged at the child care centre. In retrospect the applicant should not have suggested that the mother depart and require the child to pick up the duplo blocks. To then physically take Reece's hand and make him pick up the duplo blocks while the mother watched from a distance, was an ill conceived attempt to correct Reece's behaviour. Once carefully considered, the approach adopted by the applicant was unlikely to impress the mother or act in any lasting way as a behaviour correction.

These are questions regarding appropriate techniques for child behaviour modification. The generally accepted view appeared that the physical contact with the child, such that the applicant sought to compel the child to physically pick up the duplo blocks was inappropriate and unnecessary. There may be alternative views that could be expressed about appropriate methods for child behaviour modification. Nonetheless the event took on the appearance of a "battle of wills" between the applicant and a 2 year old child. The applicant made an important error of judgment when she physically compelled the child Reece to pick up the duplo blocks. However the actions of the applicant did not represent an act of gross and wilful misconduct, sufficient to warrant summary dismissal.

As stated earlier in this Decision, even if the Commission was to have accepted that all four incidents occurred, at their highest, these events could not represent even in combination, justification for summary dismissal as opposed to dismissal with required notice.

It appeared that the nature of the applicant's transgressions was elevated because of the employer's failure to properly monitor the applicant's period of probationary employment. These incidents which would represent legitimate employment concerns, had not been properly recorded and appropriately dealt with during the period of probation. This caused significant overreaction such that the alleged pattern of inappropriate behaviour was entirely misconceived.

It is further important to mention that the absence of any evidence from the City Manager would likely ensure the success of the claim. The process that the employer adopted regarding the investigation into the four incidents and the subsequent production of a document which became Exhibit 1, (confidential dismissal of employee) displayed a number of serious deficiencies.

It is somewhat disconcerting to contemplate the prospect that the City Manager would be required to make a decision based upon a recommendation that clearly contemplated that the presumption of innocence had been reversed. Further, it is of concern that a decision would be taken to dismiss an employee on the basis of allegations of misconduct, and that the person making such a decision would not have the benefit of observation of the various individuals including those that made the allegations. Of course in the absence of any evidence from the City Manager, the Commission has been unable to resolve the various questions that arise from the decision to dismiss made in such circumstances.

The employer's position vacillated on the question as to whether the applicant had been summarily dismissed or dismissed with notice. As the proceedings unfolded it appeared that the employer proposed that the applicant was entitled to a payment of an amount equivalent to a further two weeks wages in lieu of notice. The employer further contended that the applicant had not made any approach to obtain the payment in lieu of notice, even though the employer had stated that it believed that the applicant was entitled to such payment.

The proposition that a dismissal that was clearly summary in nature at the time could be retrospectively converted into a dismissal with notice, must be rejected. Unless there was evidence of there being a genuine mistake in terms of the basis for dismissal and rectification of such error in a timely fashion, the employer could not retrospectively alter what was the clear basis for the dismissal as summary termination.

Incidentally, the employer's proposition regarding the applicant's entitlement to an amount in lieu of notice, if it could be construed as some proper alteration to the basis for dismissal, would establish that the employer had failed to pay all due entitlements to the applicant at the time of termination or within a reasonable period thereafter, and without there being any justifiable basis for delay in payment of such entitlements. Therefore the failure to pay due entitlements would render the dismissal unlawful, and logically, also unreasonable.

This matter has unfortunately become much more complicated and protracted than should have been the case. The essential elements of the dismissal of the applicant were identified at an early stage of proceedings and despite the protracted proceedings and the voluminous evidentiary material, the fundamental issues regarding the dismissal have remained unaltered.

The applicant was summarily dismissed on 29 May 2001 for alleged misconduct. The misconduct was alleged to have arisen in respect of four identified incidents that the employer sought to represent as a pattern of behaviour constituting serious misconduct. Upon detailed analysis of the four incidents, the first incident cannot be established to have occurred and as such, one substantive component of the basis for dismissal cannot be factually proven.

In respect to the other three identified incidents there can be no finding that the nature of the alleged conduct, notwithstanding the various questions of contested detail of the events, could constitute misconduct that either separately or collectively, would represent justifiable basis for summary dismissal. Therefore there is no substantive basis to justify the summary dismissal of the applicant.

In addition, the process by which the employer investigated and determined to dismiss the applicant regarding the four identified incidents, was severely flawed. The process that was adopted did not provide for natural justice to the applicant. In particular, the applicant was not provided with any clear articulation of the allegations that were made against her. Further, determinations regarding the recommendation to dismiss the applicant were made by relevant employer individuals without those particular individuals properly testing and observing both the accused, and those making the allegations. The opportunity provided to the applicant represented a reversal of the correct onus in respect to a requirement for the applicant to disprove the allegations, rather than for there to be proper basis to conclude any proper, factual findings regarding the alleged events. Therefore the applicant was also denied procedural fairness in respect to her dismissal. Consequently on both substantive and procedural foundations the dismissal of the applicant was harsh, unreasonable and unjust.

The applicant has not sought reinstatement or re-employment and the Commission considers that it would be impracticable to provide for any re-establishment of the employment relationship. Therefore the Commission is prepared to provide for Orders of compensation as appropriate remedy for the applicant's unfair dismissal.

In Determining the amount of compensation that the Commission is prepared to Order, I have had regard for the applicant's attempts to find alternative employment and the remuneration received in alternative employment. Further, I have had regard to various other factors including but not limited to; the length of service of the applicant; the nature of the allegations made against the applicant, and the ramifications that might attach to such allegations which are ultimately found to be unproven; the legitimacy of complaint about aspects of the applicant's conduct; the age of the applicant; and the length of anticipated future employment in the area of early childhood teaching. Consequently I have provided Orders for payment of compensation to the applicant of an amount approximating with twenty weeks of the applicant's pre-dismissal remuneration.

In this matter, for the reasons outlined herein, I have Determined that the dismissal of the applicant was harsh, unreasonable and unjust and I hereby make the following Orders:

The Commission Orders that the employer pay to the applicant an amount of compensation of $14,840.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties.

The amount of compensation specified in Order 1 above is to be paid by the employer to the applicant within twenty one days from the date of this Decision.

[1] Transcript of proceedings, 13/2/02 @ page 33.

[2] Transcript of proceedings, 13/2/02 @ page 34.

[3] Transcript of proceedings, 13/2/02 @ page 51.