New South Wales Independent Education Union (on behalf of Cheryl Peris) and SDN Children's Services Inc. [2004] NSWIRComm 252 - NSWIRComm 2004 case summary — Zoe

NSWNSWIRComm

New South Wales Independent Education Union (on behalf of Cheryl Peris) and SDN Children's Services Inc. [2004] NSWIRComm 252

[2004] NSWIRComm 252

Industrial Relations Commission (NSW)|2004-07-01|Before: Sams DP

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-07-01

Before

Sams DP

Source

Original judgment source is linked above.

Judgment (252 paragraphs)

[1]

CITATION : New South Wales Independent Education Union (on behalf of Cheryl Peris) and SDN Children's Services Inc. [2004] NSWIRComm 252 APPLICANT: PARTIES : New South Wales Independent Education Union RESPONDENT: SDN Children's Services Inc FILE NUMBER: 1028 of 2004 CORAM: Sams DP Termination of employment - unfair dismissal - industrial dispute - director of child care centre - dismissal for misconduct - allegation of physical harm to a child - altercation between two young children - investigation by the employer - reference to Ombudsman - allegation not substantiated - further complaint to Department of Community Services (DoCS) - DoCS investigation - allegation then substantiated - motivation of witness - staff conflict - admissions of applicant - representation by Union - procedural fairness - relevant principles to be applied. CATCHWORDS : Held, allegation of physical harm to child not proven - applicant required to act in an emergency - evidence unclear as to whether applicant 'whacked' child on the face - applicant acknowledged inappropriate behaviour - applicant's conduct out of character - character references of other teachers - sincere contrition and regret - DoCS failure to interview the applicant or consider her responses - inappropriate reliance by employer on DoCS investigation - failure to consider mitigating factors - long and unblemished service - dismissal too harsh a penalty - motivation of unfavourable witness towards the applicant - unreliability of respondent's witness - dismissal harsh, unjust and unreasonable - substantive and procedural unfairness - no relief ordered at this stage - parties directed to confer - further proceedings. Centre Based and Mobile Child Care Services Regulation (No.2) 1996 Children and Young Persons (Care and Protection) Act 1988 LEGISLATION CITED : Commission for Children and Young People Act 1998 Industrial Relations Act 1996 Ombudsman Amendment Child Protection and Community Services Act 1998 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Antonakopolous v State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 Bigg & Anor v NSW Police Service (1998) 80 IR 434 Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 Buckman v Burdekin (1998) 85 IR 415 Burke v McGirr (1995) 87 IR 54 Busways v Johnson (1994) 55 IR 255 Byrne and Anor v Australian Airlines (1995) 61 IR 32 Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Day v Lumley Life Limited (1999) 90 IR 70 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Gregory Bowman and City of Sydney Council [2001] NSWIRComm 91 Franklins Ltd v Webb (1996) 72 IR 257 CASES CITED : Hill v Department of Juvenile Justice [2000] NSWIRComm 128 Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517 Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 Little v Commissioner of Police (No.2) (2002) 112 IR 212 North v Television Corporation Ltd (1976) 11 ALR 599 Oswald v NSW Police Service (1999) 90 IR 42 Outboard World v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Police Association of New South Wales on behalf of Adam Tregonning, and New South Wales Police Service [2000] NSWIRComm 14 Price v Box Valley Pty Ltd (1999) 90 IR 480 Shop, Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1 Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27

[82]

77 Ms Lamers agreed that during 2003 there was a significant degree of staff conflict which included conflict between herself and other staff. Ms Lamers accepted that a meeting to discuss a grievance had been arranged for 26 November, but she had not attended due to her own emotional upset. Ms Lamers wrote to Ms Udy on 26 November in which she said: To Ginie, After my conversation today with Margi Barns, once again over incidents with Cheryl Peris, I feel obliged to inform you that I will be seeing my doctor today with the intention of having some 'stress related' time off due to the continuos (sic) verbal abuse, harassment, intimidation and stand-over-bullying tactics from Cheryl Peris. As you are aware, I filed a complaint recently about an alleged assault of a child by Cheryl. Although my confidentiality was assured, since the report was made, Cheryl has continuously treated me in a way that reflects her knowing I was the one who reported the incident. I have now reached the point where I feel my health and private home life have been affected because of the treatment I am receiving off (sic) Cheryl. After weeks of sole (sic) searching, I have now come to the decision to inform DOCS of the incident regarding the alleged child abuse even though you investigated it and I received a reply from this investigation. I feel it is my duty as a carer, not to mention my obligation under the Child Protection Act, to inform DOCS of this incident. I couldn't live with myself if this happened again to another child. I have also taken the liberty to inform Tanya Peachy who is the president of the P & C Association at Hamilton Street of the alleged incident and of my reporting the incident. I feel the P & C needed to know this because as a parent I would want to know, and I also believe that it did occur, due to the marks on the child's face. I am solely there to offer the best possible environment for the children, something that I do well, however how can I do this with the ongoing harassment and abuse I am receiving? Cheryl has abused me on many occasions in front of other staff members and the children. The persistent abuse has been happening over the past two years and I have kept documentation of everything for the two years. Every time Cheryl has abused, harassed and intimidated me I have recorded it. I also believe that Cheryl is in breach of OH & S policy, that is, by not providing a safe and friendly working environment not only for myself but for other staff members who unfortunately are not brave enough to stand up for themselves and speak out. I also feel it is only fair to inform you that I am in the process of pursuing charges to be put up against Cheryl for intimidation, victimisation, harassment and stand-over-bullying tactics in the workplace. Although this was a last resort, I would have preferred an alternative solution to this ongoing problem however, I am at the point where I can not take this anymore. As you may be aware, another staff member, Bodie Wright, left SDN for exactly the same reason. How many more staff are you willing to loose (sic) for the sake of 1 or 2 staff members who are hell bent on making life miserable there? I understand that when you and other SDN staff come to the centre, things look great. But believe me; this is far from the truth, as my documentation will prove. It is quite easy to put on an act when you know someone is coming to see your centre. I am sorry that it has come to this. I have the greatest confidence that you will do what is necessary and I will be forwarding this letter to the union and their solicitors and also the P & C association.

[128]

123 Ms Udy deposed that she was obliged to notify the Commission for Children and Young People and the Ombudsman of the decision to dismiss the applicant. She said a transfer or demotion were not possible. However, Ms Udy claimed at para 42 of her affidavit that she also took the following factors into account: 42.1 I was aware that Cheryl had long service with SDN and was otherwise performing her duties as Director, 42.2 Cheryl was clearly upset at what had occurred, 42.3 There had been tensions at the Centre and staff were not always working harmoniously with each other, 42.4 An adverse decision would make it hard if not impossible for her to secure employment in the child care industry again, and 42.5 Cheryl might find it difficult to secure other employment in the Bathurst region. 43.1 Cheryl was the Director of the Centre and was the person in charge who must lead by example. There was nobody more senior on site to ensure child protection policies were maintained. 43.2 Her lengthy experience in child care and as a Director meant that she ought to have been aware of how to respond in such circumstances, 43.3 As Director she should have made a report of the incident especially after Allana told her of J's statement. 43.4 Had Cheryl been under some stress at work she should have allowed that stress to affect her behaviour towards the child and she could have sought help if she was having difficulty. 43.5 Cheryl never said that she had any difficulties or needed help in dealing with children at the Centre. 43.6 The Centre had been given support to deal with any staffing difficulties at the Centre. 43.7 Cheryl denied the incident which sat oddly with her mention of stress. 43.8 Cheryl made no statement about how her performance would improve or why such an event would not happen again, and without Cheryl taking responsibility for what happened I doubted she would have a change of attitude. 43.9 Her comment about not using undue pressure and her reference to different types of smacking implied that she had not accepted the policy and philosophy of SDN against physical punishment. 43.10 Hitting a child on the face is a serious matter and completely contrary to the fundamental principles of child care at SDN. 43.11 Cheryl Peris was in charge of the Centre and J must have felt he had nobody to complain to about being hit. 43.12 These types of incidents are considered by the community to be serious and there is legislation that obliges me to report the initial allegation to the ombudsman and then to demonstrate how the incident is investigated and resolved. Any concerns I have about risk of harm to a child are to be reported to DoCS and any outcome or disciplinary action is to be reported to CCYP to be used for pre-employment checks for those working with children. 43.13 I could not be confident that Cheryl understood and accepted her behaviour and I was therefore worried that she may behave in the same way again. 43.14 To allow Cheryl to remain in her position would have sent the wrong message to staff about the seriousness of hitting a child.

[199]

192 In Byrne and Anor v Australian Airlines (1995) 61 IR 32 the High Court said a termination of employment "may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted" (p72). In Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 at p302 the Full Commission said: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows : I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. See also Little v Commissioner of Police (No.2) (2002) 112 IR 212, Busways v Johnson (1994) 55 IR 255 and Wells v Commissioner of Police (2000) 100 IR 106.

[215]

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). Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described 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. Mr Paul referred me to Concut Pty Ltd v Worrell and Anor . There his Honour, McHugh J, dealt with the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal.

[218]

206 It is well held that an employer may take into account an employee's past conduct or warnings when making a decision to dismiss the employee. Authority for this proposition is found in John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517: The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice. 207 As the respondent plainly conceded there was only one basis for dismissing the applicant - the incident on 21 October 2003. She had an otherwise long and unblemished record of employment in the childcare industry. She had character references from at least two other fellow employees. The respondent itself referred to the fact she had given long and dedicated service to SDN.

[233]

221 It is now well settled that each of the words - harsh, unreasonable and unjust - have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 222 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.