| [2019] FWC 8510 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rachna Gulia
v
Communities@Work Limited
(U2018/2850)
DEPUTY PRESIDENT KOVACIC |
CANBERRA, 19 DECEMBER 2019 |
Application for relief from unfair dismissal – dismissal found to be harsh, unjust and unreasonable – application to be listed for conference and mention/directions to consider the issue of remedy.
[1] Ms Rachna Gulia (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment on 6 March 2018 by Communities@Work Limited (the Respondent) was unfair. The application was received by the Fair Work Commission (the Commission) on 20 March 2018.
[2] The matter was heard on 27-29 August and 21 November 2018, with the Applicant’s written closing submissions in reply filed on 30 January 2019. At the hearing, Ms Gulia was represented by United Voice (UV), while Mr John Wilson appeared with permission for the Respondent.
[3] The Applicant gave evidence on her own behalf along with:
• Ms Chen Zejia, an Educator who worked in the same room as Ms Gulia at the Respondent’s Ngunnawal Child Care and Education Centre (the Centre); and
• Ms Kathrine Whitty who prepared an expert report based on 21 scenarios at the request of UV.
[4] For the Respondent, evidence was given by:
• Ms Vanessa Hayes, the Respondent’s Head of Human Resources;
• Ms Kylee Blott, Manager of the Centre;
• Ms Fiona Scott, an Educator at the Centre;
• Ms Swapna Chakma, an Educator at the Centre;
• Ms Poonam Pyakurel, an Educator at the Centre;
• Ms Rupal Shinde, an Educator at the Centre; and
• Ms Samantha Paxton, the Respondent’s Lead Educator.
[5] For the reasons outlined below I have determined that Ms Gulia’s dismissal was harsh, unjust and unreasonable. Her application will now be listed for conference and mention/directions to consider the issue of remedy.
[6] Ms Gulia commenced employment with the Respondent in or around April 2009 as an Educator at the Centre. The Applicant was promoted to Team Leader of the Blue Room at the Centre around March 2012 and worked in that role until her dismissal on 5 March 2018. The Blue Room cares for children between 2 and 3 years of age.
[7] On 2 November 2017 Ms Hayes received the following email from Ms Blott regarding Ms Gulia:
“I have another report of Rachna’s ill-treatment of children in her room. An Educator from Randstad advised me last night that she was horrified by what she witnessed – yelling, pulling children by the arm, using inappropriate behaviour management strategies.
Can we dismiss her immediately??
The Educator also reported that … was yelling at children throughout the day. Can we please add this to her list of offences for the HR meeting Vanessa? (Or can we dismiss her as well?)” 1
[8] Later that day Ms Gulia was stood down on full pay with effect from 3 November 2017 whilst the incident was investigated.
[9] The Respondent engaged WISE Workplace on 8 November 2017 to undertake the investigation. Ms Shinde, Ms Pyakurel, Ms Scott, Ms Chakma and Ms Paxton were all interviewed as part of the investigation, as were Ms Anamika Biswas (an Educator at the Centre), Ms Mindy Spies (Team Leader in the Purple Room at the Centre and also the Centre’s Educational Leader), Ms Wasima Rasool (an agency worker employed by Randstad who had worked at the Centre) and Ms Najima Rasool (also an agency worker employed by Randstad who had worked at the Centre).
[10] On 15 December 2017 the investigator, Ms Donna Bigwood, wrote to Ms Gulia setting out the allegations and inviting a written response. The letter included the following:
“The allegations relate to alleged improper or inappropriate conduct whilst you were employed as a Children Services Employee at the Ngunnawal Child Care and Education Centre.
The purpose of this letter is to provide you with the details of the allegations and to provide you with an opportunity to respond to the allegations. I must emphasise that no findings have been made in relation to the allegations.
The allegations fall into the category of:
Reportable conduct – ill treatment of a child (including emotional abuse)
1. It is alleged you engaged in behaviour that constitutes ill-treatment of a child as defined by the ACT Ombudsman Act 1989 and the ACT Ombudsman Practice Guide No. 2 – Identifying Reportable Conduct, in that your behaviour, whether intentional or unintentional, can reasonably be construed as treating a child in an unreasonable and seriously inappropriate, inhumane or cruel manner.
This is evidenced by the following incidents:
a) …
t) …
Inappropriate Professional Conduct
2. It is alleged that between 1 July and 2 November 2017 you failed to uphold the ethical principles and requirements expected of you in your role as a Children Services Employee at the Ngunnawal Child Care and Education Centre. Specifically, it is alleged you have breached the Communities@Work Cultural Code Policy, in that you:
a) Failed to uphold the following ethical principles (pages 1 and 2):
• Show respect and courtesy in all your dealings with others
• Always act in good faith and in a professional and ethical manner
• Perform your work fairly and honestly, with objectivity and integrity
• Apply your skills, knowledge and experience with diligence and due care
• Strive to build a safe, harmonious, equitable and non-discriminatory workplace
• Observe and uphold the organisation’s policies and procedures and follow all lawful directions
• Uphold the organisation’s values and protect and promote its reputation and standing in the community.
b) Failed to uphold following principles of The FISH! Philosophy (page 2):
• Play: have fun and make clients feel as though can have fun as well
• Choose your Attitude: Choose to be friendly and cooperative every day, and that good feeling will spread to others
This is evidenced by the incidents outlined an allegation 1, part a to t inclusive above.
This is also evidenced by the following incidents:
a) …
Please provide me with your written response by close of business on Tuesday 19 December 2017 by emailing …” 2
[11] Ms Gulia responded to the allegations in writing on 4 January 2018. 3
[12] The Investigation Report was provided to the Respondent on 9 February 2018. In short, the Report concluded that allegations 1 and 2 (as set out in the abovementioned letter of 15 December 2017 to Ms Gulia) were sustained.
[13] On 19 February 2018 Ms Hayes wrote to Ms Gulia enclosing a copy of the Investigation Report. Among other things the letter stated that:
“Communities@Work is considering terminating your employment for misconduct on the basis of what it presently sees is the case as outlined in the attached report. Before I make a final decision in this regard, I invite you to attend a meeting and provide a response to this decision ...
You may invite a person to accompany you to this meeting. This may be a union representative or another person with whom you feel comfortable …” 4
[14] UV responded on Ms Gulia’s behalf on 4 March 2018. The response included the following:
“3. In essence our response is that the alleged conduct either did not occur or did occur but does not come within the purview of the reportable conduct scheme. In relation to this latter category we are of the view that most of the conduct is part of the ordinary operation of a center [sic].” 5
[15] Ms Hayes, together with Ms Sonyalle Brackley from the Respondent’s human resources area, met with Ms Gulia and her UV representative on 5 March 2018. At that meeting Ms Gulia was given a further opportunity to expand on or address particular issues raised in her written response.
[16] Following the meeting on 5 March 2018, Ms Hayes wrote to the Applicant notifying her of the Respondent’s decision to terminate her employment. The termination letter included the following:
“The external investigator found that you:
• Had engaged in behaviour that constituted ill-treatment of a child, as defined by the ACT Ombudsman Act 1989 and the ACT Ombudsman Practice Guide No. 2 _ Identifying Reportable Conduct.
• Had breached the Communities at Work Cultural Code Policy.
…
Having considered your written and verbal responses against what is outlined in the external investigator’s report, Communities@Work considers that the external investigator’s findings were correct. Communities@Work has therefore decided to terminate your employment with immediate effect on the ground of serious misconduct.” 6
[17] As previously mentioned, Ms Gulia’s application was received by the Commission on 20 March 2018.
[18] In more recent developments, on 10 October 2019 UV forwarded to the Commission a copy of the Show Cause Notice issued to Ms Gulia by the ACT Regulatory Authority on 14 June 2019 and a copy of the Authority’s Outcome letter to UV dated 8 October 2019. On 11 November 2019 Mr Wilson wrote to the Commission indicating that the Respondent’s view was that the correspondence should not be considered one way or the other as a decision had been reserved in respect of Ms Gulia’s unfair dismissal application. Against that background, I have not had regard to the abovementioned correspondence provided by UV.
[19] Ms Gulia submitted inter alia that the Respondent lacked a valid reason for her dismissal, adding that her challenge was premised on the following four grounds:
1. the conduct she engaged in could not be characterised as reportable conduct;
2. to the extent that some of the alleged conduct was clearly reportable conduct, it simply did not occur;
3. the Respondent took no steps to express a prohibition of the conduct in which she engaged; and
4. the investigation was geared to conclude that she engaged in misconduct irrespective of a fair reading of the statements made by workers.
[20] Ms Gulia further submitted that to the extent that allegations were made of serious misconduct that the Commission should conclude that the allegations were fabrications.
[21] In her closing submissions Ms Gulia contended that there was no sound defensible and well-founded reason for her dismissal, adding that the Respondent could not rely on inexact proofs, indefinite testimony or indirect references. Ms Gulia further contended among other things that the investigation was geared to conclude that she had engaged in misconduct irrespective of a fair reading of the statements made by workers.
[22] Also in her closing submissions, Ms Gulia dealt with each of the incidents which the Respondent relied upon to dismiss her. Ms Gulia’s submissions in that regard are set out below in the context of considering the issue of whether or not there was a valid reason for her dismissal.
[23] As to remedy, the Applicant sought reinstatement and in the alternative compensation.
[24] Set out below are the key aspects of Ms Gulia’s evidentiary case.
Ms Gulia
[25] Ms Gulia in her witness statement 7 dealt with a number of the allegations which were investigated, refuting those allegations. Ms Gulia also inter alia detailed the various jobs which she had applied for following her dismissal. In her oral evidence Ms Gulia attested among other things that:
• she had never been given a warning or undergone performance management during her employment with the Respondent;
• she encouraged children to go to the toilet but did not force them to do so, describing ‘encouraging’ as talking to the child and making them go to the toilet willingly while ‘forcing’ was dragging the child to the toilet if they were not ready to go to the toilet 8;
• she did not refuse to let children get off the toilet until they had either urinated or defecated;
• she never physically “plonked” a child onto a chair in the toilet or pulled and dragged children;
• she did not place children in the chair in the toilet if they had done something wrong, adding that the chair was only used for children who were waiting to go to the toilet and was never used for punishment;
• she never left Joshua (a child in the Blue Room) in the bathroom for half an hour;
• while children were asked to stay on a bed for half an hour they were never forced to sleep;
• at her insistence staff in the Blue Room were probably asking children to go to the toilet after 30 minutes 9;
• Ms Paxton and Ms Blott never had a conversation with her “for anything” 10;
• she gave children the opportunity to put their shoes on before going outside to play, adding that children would not be required to remain inside for a long time if they did not put their shoes on and never for as long as 30 minutes children;
• children were not distressed in circumstances where they were kept inside because they had not been able to put their shoes on;
• if a child was unhappy about not being outside, staff would help the child put their shoes on and take them outside;
• Ms Paxton had on one occasion asked her why Kiran (another child in the Blue Room) and some other children were inside, adding that Kiran did not want to put his shoes on and as he started playing with the other children in the room she did not want to force them to go outside;
• at the time she was inside working on her laptop;
• she did not put Joshua in the Quiet Room when he was upset and hold the door shut, adding that staff only left children unattended in the Quiet Room if they came out to get some tissues or something which they knew would help settle the child;
• she strongly disagreed that she had instructed Educators not to comfort James when he was upset and crying on his first day at the Centre, though she acknowledged that she may have said to one Educator that she did to need to sit with him for the whole day;
• she had never said to staff not to give Blake (another child in the Blue Room) his dummy nor had she said to him “[y]ou’re a baby”, though she agreed that she would say to the children as a group that “[o]nly babies have dummies” and to Blake “[y]ou’re a big boy now, you don’t need dummy” 11;
• Ms Blott had not spoken to her about issues raised with her by Blake’s parents about him being upset, not wanting to come to the Centre and not sleeping or about her behaviour towards Joshua; and
• with regard to allegation 1A (i.e. that Ms Gulia had confined Joshua to chair in the corner of the room and had used her body to block him in so that he could not leave), she had sat and talked to Joshua who was sitting in a chair in the corner of the Blue Room but had not used her body to block him in, acknowledging that she had an argument with Ms Mindy Spies about the incident but disputing that Joshua sat in the chair for 15-20 minutes – saying it was hardly 5-10 minutes.
Ms Zejia
[26] Ms Zejia deposed in her witness statement 12 that:
• the general practice in the Blue Room was to help children learn to put their shoes on, adding that staff would encourage children to do it by themselves but if they could not they would assist the child;
• she never observed an occasion when Ms Gulia refused to help a child or forced them to stay inside until they put their shoes on, adding that she regularly observed Ms Gulia help children with their shoes;
• she once saw Ms Gulia take Blake’s dummy away from him though she gave it straight back to him when he began to cry;
• she heard Ms Gulia say to Blake words along the lines of “you are not a baby you don’t need a dummy” and to Joshua regarding his dummy “you are not a baby”;
• when she observed Ms Gulia talking to children about dummies she was not concerned by what she said or how she said it;
• while Ms Gulia had a loud voice she never had any concerns about the way she spoke with children and never thought she was aggressive, mean or intimidating;
• she heard Ms Gulia say to children sometimes “don’t be silly”, adding that it was not said in a serious voice but more of a light-hearted or soft voice;
• she also heard Ms Gulia use the word ‘naughty’ on one or two occasions though she could not recall the context;
• she never saw Ms Gulia sit Joshua down and say “you can’t move from here”;
• there was never a time out chair in the Blue Room, adding that time outs were not used by anyone in the Room as it was not permitted; and
• with children who were not yet toilet trained Ms Gulia would often ask them “do you need to go to the toilet?”
[27] Key aspects of Ms Zejia’s oral evidence included that:
• she never observed Ms Gulia lock a child in the Quiet Room;
• Ms Gulia did not direct her not to comfort James on his first day at the Centre, adding that she did not hear Ms Gulia direct anybody else not to comfort him;
• when a child started toilet training staff would ask them every 15 minutes to go to the toilet, adding that this was not at Ms Gulia’s insistence;
• Ms Gulia did not keep Kiran inside while other children were playing outside nor did she hear her say to him “you’re not going outside until you put your shoes on”, agreeing that on occasion Kiran would be left inside for 30-45 minutes without his shoes on while other children were playing outside and that on occasions Kiran was upset at this;
• sometimes when Joshua got upset and was crying Ms Gulia would take him to the chair in the Room, adding that she would take Joshua by the hand as opposed to pull him;
• Ms Gulia would say to Blake “you’re a baby?” or “only a baby puts a dummy in” and when he arrived in the morning and had a dummy “are you a baby?”;
• Ms Gulia did not refuse to give Joshua his dummy when he was screaming or unsettled or at sleep time, later adding that staff tried to settle Joshua first before giving him his dummy; and
• she could not recall an occasion where Ms Gulia left a crying child inside without helping the child.
Ms Whitty
[28] Ms Whitty has worked in the ACT early childhood education and care sector since 1989 both as a qualified educator in centre based, school age and family day care settings and as a lecturer, tutor and mentor in the ACT’s tertiary sector in early childhood education and care courses at the Certificate, Diploma and Bachelor degree level. In addition, Ms Whitty is also a Children’s Services Advisor within the ACT Government’s regulatory authority for licensed children’ s services. In her report 13 Ms Whitty considered 21 scenarios which appear to be based on the allegations which were investigated concerning Ms Gulia. Significantly, Ms Whitty included the following caveat in her report:
“My opinion on the conduct implied by each scenario below therefore comes with a substantial caveat of not being able to assess or judge any ‘truth’ without having ‘been there’ in situ as professional judgement/assessment would demand.” 14
[29] In her report Ms Whitty characterised the conduct as ‘unreasonable’ in respect of four scenarios, ‘ineffective and unreasonable’ in respect of three scenarios, ‘seriously inappropriate’ in respect of two scenarios, ‘unreasonable and seriously inappropriate’ in respect of seven scenarios and ‘unreasonable, seriously inappropriate, inhumane and cruel’ in respect of one scenario.
[30] Given the above “substantial” caveat, I have attached little if any weight to Ms Whitty’s conclusions.
[31] The Respondent submitted that it may be that not all of the allegations against Ms Gulia which the Investigator found to be substantiated were sufficiently serious to warrant dismissal or would constitute “ill treatment of a child” within the meaning of the Ombudsman Act 1989 (ACT) (the Ombudsman Act). The Respondent further submitted that certain incidents involving Ms Gulia’s conduct towards children could be characterised as “ill treatment of a child”. This contention was not pressed in the Respondent’s closing submissions.
[32] In its outline of submissions the Respondent contended that, in the alternative, even if none of the incidents amounted to “ill treatment of a child” they nevertheless constituted a valid reason for the dismissal.
[33] In both its outline of submissions and closing submissions the Respondent set out the incidents on which it relied in dismissing Ms Gulia. The incidents were that she:
“a. Repeatedly and insistently took children to the bathroom and made them sit on the toilet despite their not needing to go;
b. Left children, including Kiran … alone inside for unreasonable lengths of time while the other children played outside, because they could not put their shoes on;
c. Left a child in the quiet room alone for an unreasonable length of time;
d. Neglected to comfort James … while he was crying throughout the day on his first day at the Centre, and instructed other educators not to comfort him;
e. Repeatedly called Blake … a “baby” for wanting his dummy; and
f. Refused or otherwise failed to follow the Respondent’s guidance and reasonable directions with respect to adapting her behaviours towards children.” (Children’s surnames not included)
[34] In its closing submissions, the Respondent set out the evidence which it contended supported a finding that the incidents had occurred. That evidence is set out later in this decision in the context of considering the issue of whether or not there was a valid reason for Ms Gulia’s dismissal. Beyond that, the Respondent submitted that:
• Ms Gulia’s dismissal was founded on evidence provided by a number of staff who were interviewed by the Investigator, adding that there was no apparent reason as to why Ms Wasima Rasool and Ms Najima Rasool would have fabricated what they told Ms Blott;
• the evidence of Ms Whitty was that Ms Gulia’s conduct was “unreasonable” and “seriously inappropriate”; and
• its reason for dismissing Ms Gulia was “sound, defensible or well founded” as per the decision in Selvachandran v Peteron Plastics Pty Ltd (Selvachandran) 15.
[35] I summarise below the key aspects of the Respondent’s evidentiary case.
Ms Hayes
[36] In her witness statement 16 Ms Hayes set out the chronology of events leading up to her decision to dismiss Ms Gulia. Notably Ms Hayes deposed that she decided to terminate Ms Gulia’s employment for the following reasons:
• the Investigation Report revealed that Ms Gulia had engaged in a pattern of behaviour that constituted “ill treatment of a child” within the meaning of the Ombudsman Act;
• she determined that Ms Gulia targeted certain children using methods of discipline that were unreasonable and seriously inappropriate, even after taking into account the characteristics of the child;
• she gave particular weight to the evidence regarding the incidents set out at a.-e. at paragraph [33] above (the incidents were set out in detail in Ms Hayes’ witness statement);
• she gave due consideration to Ms Gulia’s responses regarding those incidents, adding that to the extent that Ms Gulia’s responses conflicted with the other evidence she tended to prefer the latter as it was almost always corroborated by at least one other individual;
• a number of parents had complained to the Respondent about Ms Gulia’s conduct which posed a risk to the Respondent’s business; and
• she also determined that Ms Gulia had been resistant to adapting her behaviours despite other Educators raising concerns with her and despite receiving repeated guidance and directions from Ms Paxton.
[37] In her oral evidence Ms Hayes among other things:
• acknowledged that Ms Shinde’s statement to the Investigator regarding Ms Gulia’s approach to toilet training did not support her conclusion in respect of incident a. at paragraph [33] above;
• was unable in respect of incidents c. and d. above to point to any corroboration of the incidents in the Investigation Report;
• disagreed that she should have given more detailed consideration to the documentation provided by the Investigator to support her decision to dismiss Ms Gulia;
• agreed that Ms Gulia had not been issued with a written warning or a show cause notice by the Respondent, had not been the subject of any incident reports and essentially had an unremarkable performance history in respect of ‘HR’ matters during her eight years of employment with the Respondent;
• attested that she was aware of Ms Shinde’s evidence that the culture in the Blue Room was positive and peaceful and that Ms Gulia was respectful with the children and wanted to develop their independence; and
• agreed that the termination letter did not refer to the incidents referred to in her witness statement (i.e. incidents a.-e. above).
Ms Blott
[38] Attached to Ms Blott’s witness statement 17 was a collection of file notes which she had made in respect of issues concerning Ms Gulia. The file notes related to the period 13 July to 1 November 2017 and concerned incidents reported to her by Ms Paxton (including an incident reported to Ms Paxton by Ms Spies) and Ms Najima Rasool as well as conversations which Joshua’s and Blake’s parents had with her regarding Ms Gulia. Ms Blott in her witness statement also referred to an incident reported to her by Ms Pyakurel on 31 October 2017 to the effect that “Joshua … was upset and was put in the quiet room. The door was shut, he was screaming and crying, and [the Applicant] was holding the door closed”, and that when she raised the incident with Ms Gulia she stated that it “didn’t happen”.18
[39] In her oral evidence, Ms Blott attested inter alia that:
• a series of incidents involving Ms Gulia were brought to her attention in 2017;
• in response she sought advice, spoke to Ms Paxton and liaised often with the Respondent’s human resources area regarding the incidents but did not commence a formal performance management procedure or personally arrange any training for Ms Gulia;
• she understood that Ms Paxton had arranged for further guidance in relation to the Respondent’s expectations of Ms Gulia;
• in speaking to Ms Najima Rasool on 1 November 2017 she did not require her to create a document setting out what she had seen, though she let Ms Rasool know that the conduct was reportable and that she would liaise with her line manager as to what the Respondent would do;
• statements were subsequently sought from Ms Najima Rasool and Ms Wasima Rasool; and
• in discussing the concerns raised by Blake’s mother with Ms Gulia, she was quite frustrated because she did not get a response from Ms Gulia that was either a denial or an open dialogue about the concerns.
Ms Scott
[40] Attached to Ms Scott’s witness statement 19 was a copy of the transcript of her interview with the Investigator. In that interview Ms Scott stated inter alia that:
• she was not friends with Ms Gulia;
• with regard to Ms Gulia’s behaviour towards the children, Ms Gulia had her favourites and that if a child was more excitable Ms Gulia was harsher with them by for instance placing them in a chair in the toilet because they had done the wrong thing or because they were running around the room when they wanted to go outside;
• she had seen Ms Gulia plonk a child down in the chair in the bathroom as punishment, adding that Joshua was often in the bathroom for half an hour or more and that this had also happened to Dylan and Kiran in the past;
• Ms Gulia had told Blake that he is a baby because he was having a dummy, later adding that you could see that Blake was shattered by that comment as he withdrew into himself;
• she had seen Ms Gulia not allow Joshua, Noah and Kiran outside until they had put their shoes on, adding that Ms Gulia in showing them how to put their shoes got really rough and tried to push the shoe on quite aggressively;
• children could be kept inside for 30-40 minutes until they got their shoes on with the children very distressed while this was happening;
• she had seen Ms Gulia sort of pull Joshua around by the arm, describing Ms Gulia’s behaviour towards Joshua as inappropriate;
• Ms Gulia described children such as Kiran, Noah and Dylan as ‘silly’ if she found their nappies were wet because she thinks the children should be able to be toilet trained straight away;
• Ms Gulia called children ‘naughty’ often;
• she had seen Ms Gulia sometimes put a child in a corner or in a situation where she placed herself so they could not escape, adding that Ms Gulia sometimes stood over the top of children and that she had seen that occur mainly with Joshua;
• during one such incident Ms Gulia had said to Joshua “[n]o, you’re not going anywhere. You’re not playing, you’re not doing anything until you settle down or you’ve even – you’ve thought what you did” 20, adding that Joshua sat in the chair for a good 15-20 minutes and was distressed during that time;
• when Blake arrived in the morning Ms Gulia took away his dummy and when he began to cry either did not give it back to him or when she asked him if he wanted his dummy back and he said “yes” she would say “[w]hy? Are you a baby? Only babies have the dummies”; and
• she had noticed Ms Gulia behave differently when someone else such as Ms Blott was watching.
[41] Key aspects of Ms Scott’s oral evidence included that:
• she could not recall when the four occasions she saw Ms Gulia plonk a child in the time out chair in the bathroom occurred, acknowledging that time outs were not permitted by the Respondent;
• she did not report to the management Ms Gulia’s use of time outs or her observation that Ms Gulia would pull Joshua by the arm or drag across the floor to the time out chair if he was upset;
• her evidence was not consistent with Ms Shinde’s or Ms Pyakurel’s, agreeing that Ms Shinde was in a better position to observe practices in the Blue Room than she was;
• she disagreed with Ms Gulia’s and Ms Shinde’s evidence that children would be kept inside for at most for 10 minutes before Ms Gulia would assist them to put their shoes on, maintaining that the period was usually longer;
• she stood by her evidence that Ms Gulia took Blake’s dummy away from him and taunted him with it;
• she was sure that the statements she had made to the Investigator were accurate despite them not being supported by the statements of other workers;
• she did not agree that when she was interviewed by the Investigator she fabricated a story against Ms Gulia to deflect attention from two incidents involving her which were mentioned by Ms Shinde in her interview with the Investigator, later adding that she had taken some time off work as a result of an investigation into a complaint about her conduct with the complaint ultimately not substantiated; and
• she had not seen the Respondent’s Reportable Conduct Policy 21, Children’s Services: Relationships and Interactions with Children Policy22, Children’s Services – Promoting Positive Behaviour Policy23, Child Safe Environment Policy24, Mandatory Reporting25 policy, Safe Sleeping and Rest Policy26 and Supporting Children with Toilet Learning27 procedure.
[42] As an aside, I have significant reservations about the reliability of Ms Scott’s evidence in circumstances where parts of her evidence are inconsistent with the other evidence before the Commission. Accordingly, I have attached little weight to her evidence other than where it is corroborated by other witness evidence.
Ms Chakma
[43] Attached to Ms Chakma’s witness statement 28 was a copy of the transcript of interview of her interview with the Investigator. In that interview Ms Chakma stated inter alia that:
• Kiran was her grandson;
• she had seen Ms Gulia stop Kiran a few times from going outside until he had put his shoes on, describing Kiran on those occasions as standing at the door wanting to go outside but not crying;
• Kiran remained inside for one and half hours a few times because he could not put his shoes on;
• on the third occasion she saw Kiran inside because he could not put his shoes on she spoke to Ms Paxton about the matter, adding that on that occasion Kiran and another child were kept inside;
• a colleague had on one occasion pointed out to her that Kiran was sitting in the chair in the bathroom, adding that she thought it may have been a time out;
• she had never seen Ms Gulia pulling or dragging Kiran by the hands or arms;
• in her view the way that Ms Gulia, as a Room Leader, spoke to children was not “the professional way” and was “not appropriate” 29;
• Ms Gulia has a loud voice; and
• she heard Ms Gulia say a few times to Blake, who used to come to the Centre with a dummy, “[y]ou are baby. You are having a dummy”, “[a]re you a baby?” and “[a]re you a baby, you are having a dummy”.
[44] At the hearing, Ms Chakma was questioned primarily about her evidence in respect of seeing Kiran sitting in the chair in the bathroom and being kept inside because he could not put his shoes on. Ms Chakma’s oral evidence was consistent with her responses at interview. Beyond this, key aspects of Ms Chakma’s oral evidence included that:
• in respect of the chair in the bathroom incident, while Kiran was upset she did not see him crying, Kiran was probably sitting in the chair for five minutes or more, she did not see any interaction between Ms Gulia and Kiran before seeing Kiran sitting in the chair and she never saw Kiran sitting in the chair again;
• she was aware that Ms Paxton spoke to Ms Gulia after she raised the issue of Kiran being kept inside with Ms Paxton, adding that she was not aware of what occurred after that;
• prior to raising the issue with Ms Paxton, she went into the Blue Room and observed Ms Gulia sitting down and working on her computer with both Kiran and the girl standing at the door facing the playground and looking at the other children; and
• in respect of that incident, while she was outside she did not hear what Ms Gulia said to Kiran inside the room or what Kiran had said to Ms Gulia.
Ms Pyakurel
[45] Attached to Ms Pyakurel’s witness statement 30 was a copy of the transcript of her interview with the Investigator. In that interview Ms Pyakurel stated inter alia that:
• she had not worked in the same room as Ms Gulia and had no personal issues with her;
• the Blue Room was a happy room in terms of the culture and environment in the room;
• Ms Gulia has a loud voice;
• she had never seen any behaviour by Ms Gulia that she felt needed to be reported;
• toilet training was one area where she thought differently to Ms Gulia, adding that Ms Gulia wanted children to sit on the toilet and also wanted all the children to do the same thing despite some children being different;
• Ms Gulia was respectful towards the children and was liked by the children;
• on occasions she heard Ms Gulia raise her voice when she wanted the children to stop doing something, e.g. running inside, though she did not describe this as Ms Gulia yelling;
• she had not seen Ms Gulia pushing, pulling or grabbing children by the arms;
• she did not know anything about a naughty chair;
• the Centre did not use time outs;
• in circumstances where a child did not put their own shoes on Ms Gulia sat the child next to her until they put their shoes on after which the child was able go outside, adding that Ms Gulia helped those children who did not know how to put their shoes on;
• she had not witnessed any behaviour by Ms Gulia which concerned her;
• other than the toilet and putting their shoes on there were no other circumstances where Ms Gulia would force a child to sit;
• she had heard Ms Gulia use the word ‘naughty’ when talking to children; and
• there were not really any particular children that Ms Gulia had problems with.
[46] Ms Pyakurel’s oral evidence was consistent with her responses at interview. Beyond this, key aspects of Ms Pyakurel’s oral evidence included that:
• Ms Gulia did not “pick up children and plonk them on the toilet” but rather insisted that children sit on the toilet without asking them first whether they needed the toilet, acknowledging that on those occasions where she saw Ms Gulia require a child to sit on the toilet she had not seen any preceding interaction between Ms Gulia and the child; and
• staff were not allowed to say “no” to children or that a child was “naughty”.
Ms Shinde
[47] Attached to Ms Shinde’s witness statement 31 was a copy of the transcript of her interview with the Investigator. In that interview Ms Shinde stated inter alia that:
• she worked with Ms Gulia in the Blue Room, describing the environment/culture in the room was “[v]ery great”;
• while Ms Gulia was a bit loud the children were not scared by the way she spoke to them;
• Ms Gulia was respectful towards the children though sometimes she forced them to do things, for instance if a child did not want to go to the toilet she constantly asked them to go;
• Ms Gulia did not force children to sit on the toilet until they had finished but rather constantly asked them to go to the toilet;
• Ms Gulia required children to put their shoes on before they were allowed outside to play, adding that those children who were unable to do so were made to stay inside for at least 5-10 minutes with some children remaining inside for longer;
• children got distressed when they had to stay inside because they could not put their shoes on;
• if she tried to help a child to put their shoes on Ms Gulia would tell her not to do so;
• Ms Gulia would not let Joshua have his dummy when she was trying to get him to sleep;
• Ms Gulia did not shout or use inappropriate language towards the children, though she did say to children ‘silly billy’ (e.g. “you silly billy” when a child wet themselves) and ‘you crazy’;
• she had heard Ms Gulia use the term ‘baby’ when a child was using a dummy or wet themselves, adding that there was one child who used to arrive at the Centre with a dummy to which Ms Gulia would say “[y]ou not baby anymore. You are a big boy now. Baby only puts dummy in” 32 and that when a child wet their pants Ms Gulia would say “[y]ou baby. You need to put nappy on”33;
• she had not heard Ms Gulia call anyone ‘naughty’;
• the Blue Room did not have a naughty chair or use time outs;
• as to the incident involving Joshua, as he was running and screaming inside Ms Gulia asked him to stop two or three times and when he did not stop she held his hand and asked him to sit in the chair in the corner of the room where she spoke to him saying that if he did not stop running and screaming that he could do another activity;
• on that occasion Ms Spies asked Ms Gulia to stop as she considered her actions in asking Joshua to sit in the chair constituted a time out, adding that an argument ensued between them regarding Ms Gulia’s handling of the situation;
• Ms Gulia did not block Joshua’s way when he was sitting in the chair, though she was not sure if Ms Gulia put herself in the way so he could not get out as she was performing some other activities with other children;
• Joshua was not dragged to the chair by Ms Gulia, though he was crying;
• she thought that Ms Gulia called Joshua ‘silly’ as that was Ms Gulia’s common wording for anyone who was not doing the right thing; and
• Ms Gulia did not behave differently if Ms Blott or someone else was in the Blue Room observing.
[48] Ms Shinde’s oral evidence was consistent with her responses at interview. Beyond this, key aspects of Ms Shinde’s oral evidence included that:
• she had seen the Respondent’s Children’s Services: Relationships and Interactions with Children Policy 34 and Supporting Children with Toilet Learning procedure35;
• neither document had been brought to her attention during the period July to November 2017;
• Ms Paxton spoke to her in the staff room about toilet training but not in the Blue Room;
• Ms Gulia and the other Educators in the Blue Room assisted children who did not know how to put their shoes on when they first started in the Room;
• she did not directly observe Ms Gulia use the word ‘baby’ when speaking to Blake, adding that she heard this from another Educator; and
• there was a practice in the Blue Room of encouraging children not to use dummies.
Ms Paxton
[49] Attached to Ms Paxton’s witness statement 36 was a copy of the transcript of her interview with the Investigator and a copy of various diary notes, including diary notes regarding Ms Gulia, recorded in her online calendar. In her interview with the Investigator Ms Paxton stated inter alia that:
• as the Respondent’s Lead Educator she had been working with Ms Gulia since 2016 as a result of concerns from other Educators and her observations that Ms Gulia was not showing respect to the children or offering them choices;
• one of the Educators in the room next to the Blue Room had raised directly with her a complaint about Ms Gulia’s behaviour, adding that she went up to the Blue Room and saw behaviour that was not okay which lead to her having a conversation with Ms Gulia about the particular incident;
• the incident concerned Joshua who was sitting inside the room screaming while Ms Gulia sat on the couch on her laptop, adding that when she asked Ms Gulia why he was upset her response was that he was being silly as he would not put his shoes on;
• among other things she said to Ms Gulia that it was the responsibility of staff to assist the children if they could not put their shoes on, with Ms Gulia’s response being quite dismissive;
• she had previously spoken to Ms Gulia about using words that were disrespectful to the children such as calling them ‘silly’ and ‘naughty’;
• she had also observed Ms Gulia being disrespectful to the children and becoming quite frustrated when they were not doing as she wanted, citing as examples of Ms Gulia’s behaviour her picking up children quite aggressively and forcing them to go the bathroom or to sit down and have lunch;
• Ms Spies had complained to her about Ms Gulia’s behaviour, adding that Ms Spies had also asked her for strategies on how she could help guide Ms Gulia while they were working together in the Blue Room;
• in terms of her assisting Ms Gulia to improve her practices there were conversations in the staff room about ways to redirect children’s behaviour if it was challenging and in monthly team leader meetings;
• she felt that staff in the Blue Room would improve their practice because they knew she was watching and then, based on reports from other Educators, revert to normal once she left;
• she had heard Ms Gulia use the term ‘baby’, adding that if a child became upset Ms Gulia would say “they’re just being a baby” or “stop being a baby”;
• there was an incident involving a new child who had started in the Blue Room and wanted to have their backpack on because they derived comfort from keeping it on where Ms Gulia was quite firm that the backpack had to be put on the hook with all the other bags;
• she observed a situation where Ms Gulia had quite forcefully taken a child away from what they were doing and put them to sit on the toilet until they had been, adding that she addressed that with Ms Gulia and that thereafter every time she would go into the bathroom Ms Gulia would walk straight over to the child and say “[o]kay you’re done. Thank you”; and
• she had never received any complaints about Ms Gulia physically plonking a child onto a chair or sitting them on a chair forcefully.
[50] Key aspects of Ms Paxton’s oral evidence included that:
• the Educator who raised the complaint with her about Ms Gulia was Ms Chakma;
• she had raised the issue of disrespectful language with Ms Gulia when she heard her use such language and through many staff meetings;
• she was convinced that the child involved in the shoe incident was Joshua, adding that Ms Gulia did not accept the guidance she provided in respect of that incident;
• one method of toilet training was to sit children on the toilet to get them used to it, adding that a child should not be left there until they became distressed; and
• with regard to the incidents dealt with at Attachment B of her witness statement, beyond raising issues with Ms Gulia and in staff meetings the only other step she took was reporting some incidents to her manager.
[51] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Ms Gulia is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:
(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 FWC considers relevant.”
[52] There is no dispute that Ms Gulia was dismissed, so s.385(a) of the Act is satisfied. Ms Gulia contended that her termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer therefore s.385(c) is not relevant. The termination was not a case of redundancy so s.385(d) does not apply. Therefore, in determining whether Ms Gulia was unfairly dismissed, I must consider whether her dismissal was harsh, unjust or unreasonable as per s.385(b).
(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)
[53] In Rode v Burwood Mitsubishi 37 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran. The following is an extract from the Full Bench’s decision in Rode.
“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:
“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added)
[54] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King) 38. In King the Full Bench, drawing on Moore J’s comments in Edwards v Guidice39, stated:
“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[55] In this case, whether much of the conduct relied upon by the Respondent in dismissing Ms Gulia occurred is disputed. As such, as per King the Commission must first determine whether the alleged conduct took place and what it involved.
[56] One practical issue in this case is that the grounds for dismissal cited in the termination letter differ from those cited in the Respondent’s submissions which refer to a narrower range of reasons. In those circumstances, I will focus on the issues relied upon by the Respondent in its submissions (see paragraph [33] above).
Ms Gulia repeatedly and insistently took children to the bathroom and made them sit on the toilet despite their not needing to go
[57] Ms Gulia contended that this allegation had clearly not been made out, adding that all witnesses agreed that she took the children to the toilet frequently. Specifically, Ms Gulia denied forcing children to go to the toilet. In her submissions Ms Gulia referred to Ms Zejia’s, Ms Pyakurel’s, Ms Shinde’s and Ms Paxton’s evidence regarding this allegation. As previously mentioned, Ms Gulia’s evidence was that she encouraged but did not force children to go to the toilet and that at her insistence staff in the Blue Room were probably asking children to go to the toilet after 30 minutes. Ms Zejia’s evidence was that Ms Gulia would often ask children who were not toilet trained if they wanted the toilet and that when children started toilet training staff would ask them every 15 minutes to go to the toilet, adding that this was not at Ms Gulia’s insistence. Ms Shinde’s evidence was that Ms Gulia was respectful towards the children though sometimes she forced them to do things, for instance if a child did not want to go to the toilet she constantly asked them to go, and that Ms Gulia did not force children to sit on the toilet until they had finished but rather constantly asked them to go to the toilet.
[58] The Respondent in its closing submissions referred to aspects of Ms Whitty’s, Ms Pyakurel’s, Ms Scott’s and Ms Paxton’s evidence regarding the allegation. Ms Pyakurel’s evidence was that toilet training was one area where she thought differently to Ms Gulia and that Ms Gulia insisted that children sit on the toilet without first asking whether they need the toilet. Ms Paxton’s evidence was that she observed a situation where Ms Gulia had quite forcefully taken a child away from what they were doing and put them to sit on the toilet until they had been. In her oral evidence Ms Paxton agreed inter alia that one method of toilet training was to sit children on the toilet to get them used to it. Ms Scott’s evidence as referred to in the Respondent’s submissions related to Ms Gulia allegedly using a chair in the bathroom as punishment. In other words, the evidence does not relate to this allegation.
[59] It is clear from the material before the Commission that staff in the Blue Room frequently asked children in the room if they needed to go to the toilet. In circumstances where Ms Pyakurel does not work in the same room as Ms Gulia whereas both Ms Zejia and Ms Shinde do, I have attached greater weight to the evidence Ms Zejia and Ms Shinde in respect of this allegation. Their evidence does not support the allegation. While I note Ms Paxton’s evidence, it refers to “a” situation where she observed a child taken away from what they were doing and placed on the toilet – i.e. a single occurrence. In summary, the evidence in this case does not point to Ms Gulia ‘repeatedly’ and ‘insistently’ taking children to the bathroom. Accordingly, having regard to the material before the Commission, I am not satisfied that the conduct attributed to Ms Gulia took place.
Ms Gulia left children, including Kiran, alone inside for unreasonable lengths of time while the other children played outside, because they could not put their shoes on
[60] Ms Gulia submitted that the evidence showed that Ms Gulia educated children with the aim of developing their independence and capacity, adding that the various witnesses disagreed on how long children were kept inside before they were helped to put their shoes on. Ms Gulia relied on Ms Zejia’s and Ms Shinde’s evidence in support of her contention. Ms Zejia’s evidence was that she could not recall an occasion where Ms Gulia left a child crying inside without helping the child.
[61] The Respondent in its closing submissions referred to aspects of Ms Whitty’s, Ms Shinde’s, Ms Scott’s, Ms Paxton’s and Ms Zejia’s evidence regarding the allegation.
[62] None of the witnesses gave evidence that Ms Gulia left children alone inside because they could not put their shoes on. While the evidence is mixed as to the period that children were kept inside when they could not put their shoes, with the period ranging from 5 minutes up to one and a half hours, and whether Ms Gulia helped children to put their shoes on after a short period of time, that evidence does not go to the actual allegation regarding Ms Gulia’s conduct (i.e. that children were left alone inside). Against that background, there is no evidence which would support a finding that the conduct attributed to Ms Gulia took place.
Ms Gulia left a child in the quiet room alone for an unreasonable length of time
[63] Ms Gulia, drawing on her and Ms Zejia’s evidence, submitted that this allegation had not been made out. Ms Gulia also described Ms Rasool’s responses in respect of the allegation at interview as uncorroborated. Ms Gulia’s evidence was that she did not put Joshua in the Quiet Room when he was upset and hold the door shut, while Ms Zejia attested that she never observed Ms Gulia lock a child in the Quiet Room.
[64] The Respondent in its submissions referred to Ms Blott’s evidence regarding the report she received from Ms Pyakurel regarding this incident (see paragraph [38] above) and Ms Wasima Rasool’s transcript of interview. However, Ms Pyakurel in her evidence made no mention of Ms Gulia leaving a child alone in the Quiet Room for an unreasonable period of time. While Ms Blott’s evidence was not challenged under cross examination, I note that Ms Gulia objected to the relevant paragraphs of Ms Blott’s witness statement being received by the Commission. As to Ms Rasool’s interview with the Investigator, in circumstances where Ms Rasool did not give evidence in the Commission her responses are untested. In those circumstances, I attach little weight to her responses at interview. Having said that I note that Ms Rasool in her interview with the Investigator did not state that Ms Gulia left a child alone in the Quiet Room. What Ms Rasool said was “… [h]e was in that room for over an hour with no toys or anything … when Rachna noticed that he’s on his own there with no toys, she went and sat with him ... as a room leader, she could have – she could have prevented that.” 40 As previously mentioned, I have attached little weight to Ms Rasool’s responses at interview.
[65] In summary, the material before the Commission does not support a finding that the conduct attributed to Ms Gulia took place.
Ms Gulia neglected to comfort James while he was crying throughout the day on his first day at the Centre and instructed other Educators not to comfort him
[66] Ms Gulia submitted that despite her and Ms Zejia’s evidence regarding this incident, the Investigator chose to accept Ms Rasool’s uncorroborated statements. Ms Gulia posited that this clearly indicated a positive bias against her. In her evidence Ms Gulia strongly disagreed that she had instructed Educators not to comfort James on his first day at the Centre, though she acknowledged that she may have said to one Educator that she did not need to sit with him for the whole day. Ms Gulia’s evidence is corroborated by Ms Zejia who attested that Ms Gulia had not directed her, nor did she hear Ms Gulia direct anybody else, not to comfort James.
[67] The Respondent in its submissions referred to the responses at interview given by Ms Wasima Rasool and Ms Najima Rasool, neither of who was called to give evidence before the Commission in circumstances where their contact details were not provided to the Respondent by their employer, Randstad. As to the evidence before the Commission, in her interview with the Investigator Ms Paxton referred to an incident involving a new child who had started at the Centre who wanted to keep a backpack on but Ms Gulia was firm in requiring the backpack to be put on the hook with all the other bags. Ms Paxton does not mention James, though the inference could be drawn that he was the child in the incident referred to by Ms Paxton. Assuming it is James, Ms Paxton’s evidence does not go to the heart of the allegation, i.e. that Ms Gulia did not comfort him on his first day and instructed other Educators not to do so as well.
[68] Again, the material before the Commission does not support a finding that the conduct attributed to Ms Gulia took place.
Ms Gulia repeatedly called Blake a “baby” for wanting his dummy
[69] Ms Gulia submitted that the evidence showed that she engaged in conduct aimed at weaning children from the use of dummies to aid speech development.
[70] The Respondent in its closing submissions referred to aspects of Ms Whitty’s, Ms Shinde’s, Ms Chakma’s, Ms Scott’s, Ms Blott’s and Ms Gulia’s evidence regarding the allegation.
[71] Ms Shinde’s evidence was somewhat inconsistent in that she told the Investigator that she had heard Ms Gulia use the term ‘baby’ when a child was using a dummy and that there was one child who used to arrive at the Centre with a dummy to which Ms Gulia would say “[y]ou not baby anymore. You are a big boy now. Baby only puts dummy in”. However, in her oral evidence Ms Shinde attested that she did not directly observe Ms Gulia use the word ‘baby’ when speaking to Blake but that she heard this from another Educator. Ms Chakma’s evidence was that she heard Ms Gulia say a few times to Blake “[y]ou are baby. You are having a dummy”, “[a]re you a baby?” and “[a]re you a baby, you are having a dummy”. Ms Zejia’s evidence was that Ms Gulia would say to Blake “you’re a baby?” or “only a baby puts a dummy in” and when he arrived in the morning and had a dummy “are you a baby?”
[72] What is noteworthy in respect of the abovementioned evidence is the consistency in terms of the language attributed to Ms Gulia. Having regard to that evidence, I am therefore satisfied that the conduct attributed to Ms Gulia took place.
Ms Gulia refused or otherwise failed to follow the Respondent’s guidance and reasonable directions with respect to adapting her behaviours towards children
[73] Ms Gulia submitted that the evidence demonstrated that she had not been counselled or placed on a performance management plan by the Respondent. Ms Gulia’s evidence was that Ms Paxton and Ms Blott never had a conversation with her about anything, though she did acknowledge that Ms Paxton had asked her why Kiran and some other children were inside on one occasion when they had not put their shoes on. In respect of that incident, Ms Gulia deposed in her witness statement that after Ms Paxton put the children’s shoes on and took them outside she did not have any conversations with her regarding the incident. 41 Also in her witness statement Ms Gulia deposed that she would sometimes say that a child was being ‘silly’.
[74] The Respondent contended that there was sufficient evidence before the Commission to establish on the balance of probabilities that Ms Gulia refused or otherwise failed to follow its guidance and reasonable directions with respect to adapting her behaviours towards children. Specifically, the Respondent relied on Ms Blott’s, Ms Paxton’s and Ms Pyakurel’s evidence. The Respondent also drew on the responses at interview of Ms Najima Rasool and Ms Wasima Rasool, adding that if what they had told the Investigator was true then there could be no doubt that Ms Gulia’s conduct as witnessed by them amounted to misconduct.
[75] Ms Paxton’s evidence included that she had spoken to Ms Gulia about using words such as ‘silly’ and ‘naughty’ that were disrespectful to the children and raised the issue whenever she heard Ms Gulia use such language and through many staff meetings. Ms Paxton also stated in her evidence that she had raised the need to assist children with putting on their shoes with Ms Gulia but that Ms Gulia did not accept her guidance in that regard. Ms Blott’s evidence was that she discussed Blake’s parents’ concerns with Ms Gulia but did not get a response from her and that she understood that Ms Paxton had arranged for further guidance in relation to the Respondent’s expectations of Ms Gulia. Ms Pyakurel’s evidence was that she had heard Ms Gulia use the word ‘naughty’ when talking to children and that staff were not allowed to say that to a child. For the reasons previously outlined, I have attached little weight to the responses at interview with the Investigator of Ms Najima Rasool and Ms Wasima Rasool.
[76] I note also Ms Hayes’ evidence that Ms Gulia had not been issued with a written warning or a show cause notice by the Respondent, had not been the subject of any incident reports and essentially had an unremarkable performance history in respect of ‘HR’ matters during her eight years of employment with the Respondent.
[77] Based on the material before the Commission I accept that Ms Gulia was provided informal guidance in respect of the use of disrespectful language. What is not clear from the material before the Commission is when that guidance was provided to Ms Gulia and if the use of such language by Ms Gulia continued after that guidance was provided to her. As to the shoe incident, I accept Ms Paxton’s evidence that she spoke to Ms Gulia about helping the children put their shoes on. However, the circumstances involved in the incident do not appear to have been repeated after Ms Paxton’s conversation with Ms Gulia. Further, there is no evidence of Ms Gulia having been given formal directions in respect of any the incidents relied upon by the Respondent to dismiss her. To the contrary, it was not disputed that Ms Gulia had not been performance managed in a formal sense whilst employed by the Respondent.
[78] The above analysis does not support a finding that the conduct attributed to Ms Gulia took place.
Summary
[79] In summary, of the conduct relied upon by the Respondent to dismiss Ms Gulia I am only satisfied Ms Gulia repeatedly called Blake a “baby” for wanting his dummy. Otherwise, I am not satisfied that conduct attributed to Ms Gulia in the allegations took place. While Ms Gulia’s conduct in repeatedly calling Blake a ‘baby’ for wanting his dummy in my view contravenes the Respondent’s Children’s Services: Relationships and Interactions with Children Policy 42 by potentially negatively impacting on his self-esteem, the conduct of itself is not sufficient to provide a valid reason for Ms Gulia’s dismissal. In my view the conduct warranted some lesser form of remedial action, e.g. a written warning or a targeted performance improvement process.
[80] Beyond this I would observe that while the Respondent has a range of policies and procedures in place, what appears to be lacking is any robust process for recording and/or dealing with conduct which is potentially inconsistent with those policies and procedures. The picture painted in this case was one of the Respondent having significant concerns about several aspects of Ms Gulia’s conduct over a period of time which attracted some informal guidance from Ms Paxton but no formal response in circumstances where it was alleged that the conduct persisted or where more serious conduct was alleged to have occurred. In short, in this case no one with any managerial or supervisory responsibility at the Centre or the Respondent’s human resources area appears to have done anything to either escalate issues and/or consider a more appropriate response to address the alleged conduct in circumstances where it appears that informal guidance may not have had the desired effect.
(b) Whether the person was notified of that reason
[81] It was not disputed that Ms Gulia had been notified of the reason for her dismissal. This does not point to Ms Gulia’s dismissal being unfair.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[82] Ms Gulia stated in her submissions that she had not been interviewed by the Investigator.
[83] The Respondent submitted that Ms Gulia had been given an opportunity to respond to the reason related to her conduct before it was decided to dismiss her.
[84] While I note that Ms Gulia was not interviewed by the Investigator, she was invited to and did respond in writing to the allegations under investigation. Further, it is clear from the material before the Commission that:
• Ms Hayes’ letter of 19 February 2018 (see paragraph [13] above) invited Ms Gulia to comment on the Investigation Report and the Respondent’s contemplated sanction, i.e. termination of her employment;
• UV responded on Ms Gulia’s behalf to Ms Hayes’ letter in writing on 4 March 2018; and
• Ms Gulia and her UV representative met with Ms Hayes and Ms Brackley on 5 March 2018, with the meeting providing Ms Gulia a further opportunity to expand on or address particular issues raised in her written response of the previous day.
[85] In short, the material before the Commission indicates that Ms Gulia was given an opportunity to respond to the reason related to her conduct. As such, I do not consider that this criterion supports a finding that Ms Gulia’s dismissal was unfair.
(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
[86] It is not disputed that Ms Gulia and her UV representative attended the meeting of 5 March 2018. Accordingly, I do not consider that this criterion supports a finding that Ms Gulia’s dismissal was unfair.
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[87] Ms Gulia submitted that she had worked at the Centre for a period of eight years without any warning, adding that the Respondent had taken no steps to express a prohibition of the conduct in which she engaged.
[88] The Respondent posited that Ms Gulia’s dismissal related more to unsatisfactory conduct rather than unsatisfactory performance. However, to the extent that the dismissal did relate to Ms Gulia’s performance, the Respondent relied on its submissions that Ms Gulia refused or otherwise failed to follow its guidance and reasonable directions with respect to adapting her behaviours towards children.
[89] I consider that Ms Gulia’s dismissal related to her conduct as opposed to her performance. As such, I do not consider this criterion to be relevant in this case.
(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
(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
[90] It was not disputed that the Respondent employed dedicated human resource management specialists. Against that background, I consider these criteria to be neutral considerations in this case.
(h) Any other matters that FWC considers relevant
[91] Ms Gulia contended that:
• her dismissal was disproportionate to her conduct, questioning whether dismissal was necessary given the other disciplinary options available to the Respondent; and
• she had a lengthy service with the Respondent and had not received any previous warnings.
[92] The Respondent contended that Ms Gulia had vast experience and education as an Educator, adding that if the conduct occurred it could not be reasonably argued that Ms Gulia did not know that the conduct was wrong.
[93] I consider the Respondent’s decision to dismiss Ms Gulia disproportionate in circumstances where I have determined that not all of the conduct attributed to Ms Gulia and relied upon by the Respondent had taken place. That view is reinforced when regard is had to Ms Gulia’s eight years of seemingly uneventful service with the Respondent. Particularly relevant in coming to that view was Ms Hayes’ evidence that Ms Gulia had not been issued with a written warning or a show cause notice by the Respondent, had not been the subject of any incident reports and essentially had an unremarkable performance history in respect of ‘HR’ matters during her eight years of employment with the Respondent.
Summary
[94] In summary, I find that there was not a valid reason for Ms Gulia’s dismissal related to her conduct, that a number of criterion in s.387 do not point to Ms Gulia’s dismissal being unfair, that the Respondent’s decision to dismiss her was disproportionate to the conduct which took place, that Ms Gulia’s lengthy and uneventful service with the Respondent is a relevant consideration and that the other factors in s.387 of the Act are either neutral considerations or not relevant in this case. In this case the absence of a valid reason for Ms Gulia’s dismissal outweighs those considerations which do not point to her dismissal being unfair. Accordingly, having regard to the material before the Commission and the factors set out in s.387 of the Act supports a finding that Ms Gulia’s dismissal was harsh because insufficient weight was attached to her lengthy and uneventful service, unjust because there was not a valid reason for her dismissal and unreasonable because it was disproportionate to the conduct which took place.
Remedy
[95] Ms Gulia submitted that she seeks reinstatement. In the absence of reinstatement, Ms Gulia sought compensation for the entire period she was unemployed, i.e. the period 6 March 2018 to mid-June 2018 – a period of 15 weeks, calculated to be $17,065.80. However, Ms Gulia’s submissions are somewhat unclear as her submissions state that she ultimately seeks a declaration that she was unfairly dismissed and an order for compensation of $29,413.11. The difference in quantum results from the addition of annual leave for the initial 15 weeks during which Ms Gulia was unemployed plus the difference between what she would have earned had she continued in employment with the Respondent and what she earned over the period mid-June to end-December 2018 less a small amount she earned in other employment during the period mid-June to end-December 2018.
[96] The Respondent submitted that the relationship between it and Ms Gulia had irretrievably broken down and that reinstatement was therefore not appropriate. The Respondent further submitted that should the Commission determine that reinstatement was not appropriate that it should relist the matter to deal with the issue of compensation.
[97] There is little in the way of substantive material before the Commission regarding the issue of remedy. While my initial inclination is that reinstatement is inappropriate, having the benefit of the parties considered views on that issue and issues such as how much longer Ms Gulia may have continued in employment with the Respondent but for the dismissal would assist me in coming to a concluded view on the matter. I therefore propose to list the matter for conference and mention/directions to set a timetable for dealing with the issue of remedy.
Conclusion
[98] For all the above reasons, I find that Ms Gulia’s dismissal was harsh, unjust and unreasonable. Her application will now be listed for conference and mention/directions to consider the issue of remedy.
Appearances:
S. Russell-Uren and E. Cresshull for the Applicant.
J. Wilson for the Respondent.
Hearing details:
2018.
Canberra.
August 27-29.
November 21.
Final written submissions:
Applicant’s written closing submission in reply received on 30 January 2019.
Printed by authority of the Commonwealth Government Printer
<PR715336>
1 Exhibit 5 at Attachment A
2 MFI #1 at Annexure 2
3 Ibid at Annexure 15
4 Exhibit 5 at Attachment F
5 Ibid at Attachment G
6 Ibid at Attachment H
7 Exhibit 2
8 Transcript at PN345-348
9 Ibid at PN408-417
10 Ibid at PN426
11 Ibid at PN501-517
12 Exhibit 1
13 Exhibit 4
14 Ibid at page 2
15 (1995) 62 IR 371
16 Exhibit 5
17 Exhibit 15
18 Ibid at paragraphs 5 and 7
19 Exhibit 7
20 Ibid at Q136 of Attachment A
21 Exhibit 8
22 Exhibit 10
23 Exhibit 11
24 Exhibit 12
25 Exhibit 13
26 Exhibit 14
27 Exhibit 9
28 Exhibit 6
29 Ibid at Q192 and Q193 of Attachment A
30 Exhibit 18
31 Exhibit 19
32 Ibid at Q162 of Attachment A
33 Ibid
34 Exhibit 10
35 Exhibit 9
36 Exhibit 19
37 Print R4471
38 Print S4213
39 (1999) 169 ALR 89 at 92 per Moore J
40 MFI #1 at Q53 of Annexure 9
41 Exhibit 2 at paragraphs 79-80
42 Exhibit 10