DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Courtney Murphy
v
ECEC Management Pty Ltd T/A Mooroolbark Child Care Centre
(U2018/12220)

Application for an unfair dismissal remedy.

[1] Courtney Murphy was employed as a Child Care Worker by ECEC Management Pty Ltd trading as Mooroolbark Child Care Centre (the Centre). On 23 November 2018, her employment was terminated for serious misconduct following an altercation with another employee. On 26 November 2018, Murphy applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The Centre denies that Murphy was unfairly dismissed.

[2] A hearing was held on 14 March 2019 after attempts at conciliation failed. Murphy was represented with permission.

Preliminary matters

[3] The application was filed within the standard 21 day time limit required by the Act.

[4] Murphy’s period of employment was more than 10 months. That is longer than the minimum employment period that applied in circumstances where the Centre was not a small business employer. She was employed under the Children’s Services Award 2010 which applied to her employment, and her annual income of approximately $53,450.00 is less than the high income threshold. Murphy is protected from unfair dismissal.

[5] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; that the dismissal was harsh, unjust or unreasonable; and if relevant, the dismissal was not consistent with the Small Business Fair Dismissal Code or not a case of genuine redundancy. 1

[6] There is no dispute that Murphy was dismissed from her employment and that the Centre was not a small business employer at the relevant time. 2 I am satisfied on that basis that the dismissal could not have been consistent with the Small Business Fair Dismissal Code at that time.3 No issue of redundancy arose in this matter and I am satisfied that the dismissal was not a case of genuine redundancy. The question is whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

Was there a valid reason for the dismissal related to capacity or conduct?

[7] The dismissal occurred in response to a single incident at approximately 3.45pm on 25 October 2018.

[8] It is alleged that Murphy walked aggressively toward another employee, Caitlin Whiting, and said “Well what, do you want to go me?” with her hands in the air, gesturing as if to fight. It is alleged that the incident occurred in front of a parent and child at the Centre and that another staff member had to intervene by standing between them.

[9] Murphy’s version of events 4 is that she was cleaning one of the children’s rooms when Whiting angrily swung the Centre’s bathroom door open and started speaking very rudely towards her, in words to the effect:

“You need to think of how your behaviour and selfishness is affecting all of us.”

[10] Murphy says she was talking to a parent at the time. She became fuelled with anger and turned around, saying “You really want to do this now, seriously?”

[11] Whiting continued to say that she had been doing nothing and only focusing on her room for over an hour; that this left them understaffed and “Louise” had not even had a break. Murphy cut her off to defend herself and Whiting kept insisting that she stop and listen to her point of view. Murphy says she cut her off again and told Whiting that her point of view was irrelevant.

[12] Murphy says another employee, Laura Farrell, intervened and told them to cut it out because there were children around. She agreed with Farrell and suggested to Whiting that they finish the conversation outside, away from the children, using words to the effect of:

“Let’s step outside to finish this” 5

or

“Let’s step outside and finish this.” 6

[13] She then went back to her room and continued working (her shift finished shortly thereafter). Murphy denies threatening to fight Whiting. She says her hands were clenched and there was no physical contact between them.

[14] Whiting’s account 7 is different. She says Louise approached her to say that she had not had her 10 minute break, so she stuck her head in to the room where Murphy was chatting with a parent and said to her:

“Louise hasn’t had her break and you’ve been here an hour”.

[15] She says Murphy immediately became aggressive and strode towards her, saying:

“You want to go me? Let’s go.”

[16] Whiting says Farrell had to stand in between them to stop Murphy, intervening and telling Murphy to calm down as there were kids and a parent present. According to Whiting, Murphy then said “Fuck it, I’m over this shit” and stormed off.

[17] Farrell’s version of events is that Whiting opened the bathroom door and asked Murphy if she was coming out as Louise needed a break and others needed to clean their rooms. She says Murphy turned and walked towards Whiting saying “I’m dealing with a parent issue right now”. Whiting again requested her to come outside as she had been cleaning her room for a long time. According to Farrell, Murphy then aggressively started to walk towards Caitlin saying “What, you want to go right now” creating a hands action that would suggest a fight. Farrell says the incident was in clear view of a parent and with children present. They were about a metre apart. She felt like there was going to be a bit of a fight, so she stood in between them with a child in her hands, saying “that’s enough ladies”. She did not feel safe. She then led Caitlin outside. 8

[18] Another employee, Tiffany Wilson, also witnessed the incident. Her version of events is that Whiting said something to Murphy like “Courtney when are you coming back outside because we still need to cover some afternoon breaks”. According to Wilson, she was stern but did not raise her voice. Murphy replied “Yes I’m coming can you see I am with a parent” in an abrupt and aggressive way, with her voice raised. Whiting then said “OK no worries just checking” and went to walk off, but Murphy walked over and opened up the bathroom door and started raising her voice at Whiting. She could not hear what was said. She saw Courtney waving her hands around whilst she had her voice raised. There was a parent right there and children. 9

[19] The balance of evidence weighs against Murphy’s version of events. The evidence of Whiting, Wilson and Farrell is largely consistent. However, I do not accept Whiting’s evidence that she was not angry when she called to Murphy to come outside. Whiting’s statement to Murphy that “Louise hasn’t had her break and you’ve been here an hour” was both stern and accusatory, and must have followed an earlier conversation with Farrell about the amount of time Murphy was taking to clean her room while other staff were outside supervising children. According to Farrell, Whiting was angry because they “had been waiting a while for Courtney to come outside”. 10 I accept that evidence.

[20] I do not accept Murphy’s evidence that her response to Whiting was simply a suggestion to continue their conversation outside. This evidence seeks to downplay Murphy’s conduct to avoid any suggestion of violence or threatened violence. It is disingenuous and inconsistent with her earlier admissions that she was “fuelled with anger” at the time; “became angry quickly”; was “too angry” and “needed to remove myself from the situation”. Her email to the Centre on 29 October 2018 confirms that she knew the seriousness of her outburst and that she would need to make a formal apology to Whiting. In her own words, Murphy “understood that I had very much crossed a line”. 11 Regrettably, she has retreated from that position and sought to downplay the exchange significantly in this proceeding.

[21] I find that on 25 October 2018, at approximately 3.45pm, Murphy walked toward Whiting with her hands in the air, gesturing as if to fight and using words to the effect of “What, you want to go me?” In doing so, I find that she was challenging Whiting to a physical fight.

[22] Murphy explains her reaction by describing that she felt Whiting had spoken rudely by her, and she needed to defend herself. I accept this evidence.

[23] The outburst occurred in the context of what has clearly been a tense relationship between Murphy and Whiting for some time. Reasonably or otherwise, Murphy felt that Whiting was out to get her. Whiting lived nearby to the parents of Murphy’s former partner, with whom she had a history of domestic violence including court intervention orders. Murphy and Whiting had different (and it seems, strongly held) views about professional child care and safety standards. Their relationship at work was competitive and not friendly. Centre gossip fanned the flames of this tension from time to time and caused unnecessary misunderstandings between them. Whiting’s children were in care at the Centre, in the room where Murphy worked. This also caused tension between Murphy and Whiting and her husband and there had been a recent ‘nappy changing incident’.

[24] The conflict was the subject of mediation between the two, facilitated by Centre Director Nadia Latin on 23 October 2018. It is to Murphy’s credit that she requested mediation. The outcome was an agreement to resolve issues directly in a professional manner and not listen to rumours or allow issues to escalate. Superficially, it was a success. However, I find that the reality was quite different. According to Latin, Murphy was angry during the mediation and was focused more on controlling her emotions than expressing her ‘true feelings’. For her part, Whiting was relieved when it was over and wanted to move on and put everything behind her. As she could feel Murphy’s tension during the meeting, she chose to apologise for making Murphy feel upset or hurt by anything she had done rather than to aggravate the situation. 12

[25] Two days later, unresolved emotions were easily triggered by a sharp exchange between them. That helps to explain, but does not excuse, Murphy’s decision to threaten violence toward another staff member. She had other options. She could simply have finished cleaning up and come outside to give Louise her break. She could have walked away, and taken the matter of Whiting’s rudeness up with a more senior person. It is beside the point that Murphy did not actually assault Whiting. Given her admitted loss of control over her anger, it is entirely conceivable that without intervention, an assault may have occurred. The conduct occurred in the vicinity of a Centre parent and at least one child in care. In my view, it was serious misconduct.

[26] For the reasons set out above, I find that there was a valid reason for dismissal related to Murphy’s conduct on 25 October 2018. This weighs against a finding of unfair dismissal.

Was that reason notified to the employee?

[27] Approximately three hours after the incident on 25 October 2018, Murphy had a discussion with Latin about what had occurred. Latin asked for her version of events, and gave her Whiting’s account, which Latin said appeared much more serious. Murphy advised that she would be taking sick leave the next day and that she was sorry. Latin advised that there would be an investigation. Murphy asked if her job was on the line and Latin responded to the effect that she didn’t know how it could be resolved, and that she could not see Murphy and Whiting continuing to work together.

[28] After taking personal leave on 26 and 29 October 2018, Murphy was stood down on full pay on 30 October 2018 pending an investigation into the incident.

[29] Murphy and the owner of the Centre, Ben Abdul, spoke at least twice in the days following 25 October 2018. Murphy was told that she was being investigated for making an apparent violent threat towards Whiting. She was asked to write a detailed statement of the events so that her continued employment could be considered. 13

[30] On 29 October 2018, Murphy complied with the request for a statement in a comprehensive way. Her response confirms that she was on notice that her conduct toward Whiting on 25 October 2018 had put her employment with the Centre in jeopardy. She entreated the Centre to allow her to return to her position as soon as possible, noting the effect of her unexplained absence on families and children in the room she was responsible for leading. 14

[31] I am satisfied that Murphy was notified of the valid reason for her dismissal prior to the dismissal taking effect. This weighs against a finding of unfair dismissal.

Was there an opportunity to respond to any capacity or conduct related reason?

[32] After discussions with Latin and Abdul in late October 2018, Murphy provided her comprehensive statement of the incident to the Centre on 29 October 2018.

[33] On 20 November 2018, Murphy was formally interviewed over the telephone about her version events. Whiting’s version of events was again explained to her and the investigation process was outlined and her response sought.

[34] I am satisfied that Murphy was given a full opportunity to respond to the reason for dismissal relating to her conduct on 25 October 2018. This weighs against a finding of unfair dismissal.

Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?

[35] There is no evidence of any refusal to allow Murphy to have a support person to assist in discussions relating to the dismissal. Murphy was accompanied by a support worker, Kristel Clarke, during the interview on 20 November 2018. 15

[36] On 22 November 2018, Murphy was asked to come in for a meeting the following day, 23 November 2018. She asked for the meeting to be rescheduled as she could not arrange a support person. The Centre did not agree to reschedule the meeting and instead Murphy arranged for another support person, Stacie Noutsis, to be present as her support person.

[37] I am satisfied that there was no unreasonable refusal to allow Murphy to have a support person assist in discussions about the dismissal. It is a neutral consideration in this case.

Was the Applicant warned about relevant unsatisfactory performance?

[38] Murphy’s dismissal was not related to unsatisfactory performance, but rather to her conduct during the incident on 25 October 2018.

Degree to which the size of the employer’s business and absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal

[39] At the time of the dismissal, the business employed approximately 30 employees at its two child care centres. It is not a small business for the purposes of the Act, but it is a relatively small business. In my view, this was both likely to, and did, have an impact on the procedures followed in effecting the dismissal.

[40] The business did not have dedicated human resource management or expertise employed by the Centre. It had access to advice from its industry association, the Childcare Alliance, but the terms of that access are not clear. In my view, the absence of particular expertise in the business in this respect was also likely to, and did, affect the procedure followed in effecting the dismissal.

[41] In some respects, the process was orthodox. An allegation was made, Murphy was stood down on full pay, and an investigation occurred before allegations were formally put and determined. In one important respect, however, I consider that the process was deficient. The focus of the investigation was primarily on Murphy’s conduct toward Whiting. Certainly that was a matter which warranted investigation, and the Centre took its obligations in this regard seriously.

[42] However, other matters that arose during the course of the investigation – that is, Whiting’s contributory conduct and the well-intentioned but unsafe conduct of Farrell in putting a child in harms’ way, do not appear to have been dealt with on an equal footing, as the conduct in each case was not considered serious enough to warrant a disciplinary response. Whiting was not warned for her part in the incident that resulted in Murphy’s dismissal. Willingly or not, she was a participant in the conflict both on that day and also, in my view, in the weeks and months leading up to it. The result was that the investigation and disciplinary process was not a balanced one. This highlights both the importance of objectivity and the difficulty for inexperienced employers in ensuring procedural fairness for employees absent specialist advice and support. It weighs in favour of a finding of unfair dismissal (in relation to fairness between Murphy and other employees of the Centre) and against a finding of unfair dismissal (in relation to the Centre’s size and related lack of dedicated human resources management or expertise in the business).

[43] Secondly, Murphy’s history of domestic violence and related mental health were matters that I find were taken into account by the Centre in reaching the conclusion that dismissal was warranted. The Centre explained this as part of its duty of care to staff. As I understand the argument, it did not wish to find itself in a position where there was an incident at the Centre and it had not acted to protect staff from a person that it was aware had a history of violence.

[44] The premise of the submission is inherently problematic because it fails to recognise the necessary causal link between one’s prior history and present employment circumstances. An added difficulty is that there is no evidence it put Murphy on notice that the matter was considered relevant to the investigation of her conduct and subsequent findings. There is no evidence that it gave her an opportunity to help put her past in context, or even to object to the matter being relied upon in connection with her dismissal. While the matters may have been relevant in helping to explain the tension between Murphy and Whiting, it could only have been considered fairly with the input of Murphy herself. The result was a denial of procedural fairness to Murphy. This weighs in favour of a finding of unfair dismissal.

Other relevant matters

[45] The relevance or otherwise of workplace policies was in dispute. The Centre says that as a former Assistant Director of its other Centre, Murphy would have been fully aware of its policies, which required, among other things, that employees conduct themselves professionally, communicate positively with other staff and take reasonable care for their safety and that of others at work. It says Murphy breached its policies by threatening Whiting on 25 October 2018. Murphy says she at the time had only a general awareness of Centre policies but that she had not received any policies for the Mooroolbark Centre and had “not been inducted into them”. 16 The suggestion is that she cannot be held liable for any alleged policy breach.

[46] The Centre has not established that its workplace policies were actually given to Murphy. Child care centres in Australia are heavily regulated and must meet the requirements for approval under the National Quality Framework administered by the Australian Children’s Education and Care Quality Agency. For this reason, I consider it likely that Centre policies were available to Murphy both in her previous role as Acting Director and in her role at the time of dismissal. Whether she took the time to read and understand them is a separate question and one that is also not established on the evidence. The uncertainty in this regard does not detract from Murphy’s own evidence that she understood, prior to the incident on 25 October 2018, that staff should be treated with respect and that violence at work was not acceptable. 17 I do not accept that there is any relevant distinction to be drawn in that regard between actual violence and threatened violence. A threat of violence is the antithesis of respect. There is also no doubt that Murphy was aware of the seriousness of her behaviour on 25 October 2018. She apologised to the Centre at the first available opportunity in her discussion with Latin later that day. Her remorse at the time weighs in favour of a finding of unfair dismissal. It is balanced against Murphy’s awareness of what was and was not appropriate workplace conduct, as well as her choice at the critical moment to threaten violence toward another staff member and her later retreat from the position of remorse in seeking to challenge her dismissal. Each of those matters weigh against a finding of unfair dismissal.

[47] Finally, it should not go unremarked that the statement of Lachlan Pearce produced by the Centre in this matter has all the appearance of a statement designed to do nothing but attack Murphy’s character. Pearce was not a witness to the incident on 25 October 2018 and he was not called to give evidence. His statement has no apparent relevance to the matters arising for decision in this case. I do not accept its contents and I have given it no weight.

Conclusion

[48] The procedural failings I have identified in the period after 25 October 2018 put the Centre on notice of other measures it may now need to take to ensure that ultimately, balance is achieved and the safety of children in care is never compromised. However, they do not mitigate the seriousness of Murphy’s conduct on that day. Having regard to all of the relevant facts and circumstances above, on balance, I am not satisfied that Murphy’s dismissal was harsh, unjust or unreasonable. Accordingly, I find that Murphy was not unfairly dismissed.

[49] The application is dismissed.

COMMISSIONER

Appearances:

I Scott for the Applicant

S Abdul for the Respondent

Hearing details:

2019.

Melbourne:

March 14

Printed by authority of the Commonwealth Government Printer

<PR708092>

 1   Fair Work Act 2009 (Cth), s.385

 2   Applicant’s Outline of Submissions; Form F3

 3   Fair Work Act 2009 (Cth), s.23 and s.388

 4   Exhibit 1

 5   Exhibit 1

 6   Exhibit 1, including Attachment CM-1 (email to Centre, 25 October 2018)

 7   Exhibit 4

 8   Exhibit 2

 9   Exhibit 5

 10   Evidence of L Farrell, audio file of hearing, 14 March 2019

 11   Exhibit 1 at Attachment CM1; Audio file of hearing 14 March 2019

 12   Exhibit 6

 13   Exhibit 1

 14   Exhibit 1

 15   Exhibit 1

 16   Audio file of hearing, 14 March 2019

 17   Audio file of hearing, 14 March 2019