| [2021] FWC 1060 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Asiye Oz
v
Amity College Australia Limited
(U2020/5665)
Yildiz Kosaroglu
v
Amity College Australia Limited
(U2020/5692)
COMMISSIONER CAMBRIDGE |
SYDNEY, 2 MARCH 2021 |
Unfair dismissals - no valid reason for dismissals - harsh, unjust and unreasonable dismissals - compensation Ordered.
[1] This Decision is made in respect of two applications for unfair dismissal remedy that were taken pursuant to s. 394 of the Fair Work Act 2009 (the Act). The applications were lodged at Sydney on 24 April 2020. The applications were respectively made by Asiye Oz and Yildiz Kosaroglu (the applicants) and in both matters the respondent employer is Amity College Australia Limited ABN: 72 166 175 202 (the employer).
[2] The applications indicated that the date that the applicants’ dismissals took effect was 6 April 2020. Consequently, the applications were made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matters were not resolved at conciliation, and they have proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Sydney on 31 August, 1 September, and 23 October 2020. At the Hearing, Ms L Doust, barrister, was granted permission to appear for the applicants. Ms Doust was instructed by Mr K Bolwell, solicitor, from the firm of Work Lawyers. Ms K Lopes, solicitor, from the firm of Colin Biggers & Paisley was granted permission to appear on behalf of the employer.
[4] The applicants, Ms Oz and Ms Kosaroglu, were called as witnesses and provided evidence in support of their unfair dismissal claims. In addition, two witness statements from individuals who were not required for cross-examination were admitted into evidence for the applicants. The employer adduced evidence from a total of five witnesses including what may be described as primary evidence for the employer, which was adduced from its Executive Principal, Mr Deniz Erdogan (Mr Erdogan).
[5] The applicants were both long serving employees, Ms Kosaroglu having commenced employment in 1999, and Ms Oz in 2000. The applicants worked at a childcare centre on a full-time basis. Ms Kosaroglu was the Nominated Supervisor of the childcare centre, and Ms Oz was engaged as an Early Childhood Teacher.
[6] The employer operates an educational College, providing services of an independent co-educational school covering both primary and secondary years. The employer provides educational services in five schools, across three campuses which are in Western Sydney and the Illawarra region. The employer’s educational services are provided to more than 2000 students enrolled from kindergarten to year 12, and it employs more than 250 staff.
[7] In conjunction with its educational services, the employer also operates the Tomurcuk Childcare Centre (the childcare centre) which is situated within the employer’s largest campus, located in the Sydney suburb of Prestons. The childcare centre provides long day care for children between 6 months and 5 years of age and has the capacity for 23 children. There were six staff members, including the applicants, employed to operate the childcare centre. The childcare centre primarily, but not exclusively, provided childcare services for the employer’s staff.
[8] Prior to August 2018, the employment of the applicants was without any recorded complaint or identified concern. In August 2018, the employer’s Executive Principal, Mr Erdogan, conducted an investigation (the 2018 investigation) into complaints that had been made about various aspects of the operation of the childcare centre. In September 2018, Mr Erdogan issued the applicants with letters that set out the findings of the investigation that he had conducted. These letters included various conclusions regarding topics such as staff professionalism, excessive screaming, judgemental conclusions, and physical and psychological abuse. In summary, the applicants (and one other employee) were said to have, inter alia, “engaged in malpractice in recent years.”
[9] At this time, the employer did not indicate that it would invoke disciplinary action against the applicants, other than the provision of the letters which Mr Erdogan considered to be warning letters. However, the employer did implement a number of other measures in response to the findings and conclusions reached in the 2018 investigation. These other measures included, the installation of CCTV cameras, staff training, parent and staff satisfaction surveys, introduction of behaviour management policies, and structured, regular parent-teacher interviews.
[10] On 19 September 2018, in response to the findings and conclusions of the 2018 investigation, Ms Kosaroglu provided her resignation from employment. Mr Erdogan did not immediately accept or act upon Ms Kosaroglu’s resignation and he suggested that she reconsider the decision. On 2 October 2018, following further discussion with Mr Erdogan, Ms Kosaroglu withdrew her resignation and continued in employment.
[11] Almost a year later, in September 2019, the applicants were the subject of further allegations which at this time were characterised as serious child abuse. These allegations were formalised in letters dated 20 September 2019, issued to each of the applicants. The letter issued to Ms Kosaroglu set out six allegations and in the case of Ms Oz there were two identified allegations. The applicants were required to provide written responses to their respective allegations by Friday, 27 September 2019. Each of the applicants provided detailed written responses in accordance with the employer’s directive.
[12] On 8 October 2019, each of the applicants was provided with a letter from Mr Erdogan which relevantly advised that the allegations made against the applicants involved conduct that was reportable conduct in accordance with relevant child protection legislation, and that the Association of Independent Schools (AIS) had been engaged to investigate the allegations. Further, the applicants were stood down from their employment and placed on paid leave from 8 October 2019.
[13] On 6 December 2019, the applicants were provided with letters from Mr Erdogan which set out various revised allegations that were made against each of the applicants. In these letters there were four identifiable allegations made against Ms Kosaroglu, and three allegations made against Ms Oz. The applicants were invited to respond to the allegations either by attending an interview with the AIS investigator or alternatively providing a written response. Both of the applicants provided the AIS investigator with written responses to the allegations set out in the letters of 6 December 2019.
[14] On 21 February 2020, Mr Erdogan sent letters to each of the applicants which set out the preliminary findings of the AIS investigation. In each case, the preliminary findings indicated that one allegation had been sustained in respect of each of the applicants. The preliminary findings letters provided the applicants with a further 7 days to provide the AIS investigator with any additional information before final determinations would be made. Both of the applicants provided further additional information in accordance with the employer’s directive.
[15] On 6 March 2020, Mr Erdogan sent letters to each of the applicants which set out the final findings of the AIS investigation. In each case, the final findings sustained the one allegation against each of the applicants as had been identified in the preliminary findings.
[16] On 11 March 2020, Mr Erdogan sent show cause notice letters to each of the applicants. These show cause letters relevantly indicated that the employer was considering terminating the employment of each of the applicants as a result of the findings of the AIS investigation as had been confirmed in the earlier correspondence of 6 March 2020. The show cause letters also advised the applicants that they would have an opportunity to respond to the reasons upon which the employer was proposing to terminate their employment. The applicants were advised that their responses could be provided both in writing and in person at a show cause meeting that was scheduled for 18 March 2020.
[17] Each of the applicants attended separate show cause meetings that were held respectively at 4 and 5 pm on 18 March 2020. At the conclusion of each of the show cause meetings each of the applicants was offered an opportunity to provide any further written response material by Monday, 23 March 2020. On 19 March 2020, Ms Kosaroglu provided further written response material to Mr Erdogan.
[18] On 6 April 2020, Mr Erdogan sent each of the applicants letters which confirmed the termination of their employment. The termination of employment letters relevantly stated that Mr Erdogan had taken time to consider each of the applicants’ responses and he remained of the view that the conduct of each of the applicants was behaviour that caused serious and imminent risk to the health and safety of children and to the reputation of the employer. The letters advised that each of the applicants employment was terminated, effective immediately, and noted that the last day of employment for each of the applicants was Friday, 3 April 2020. Both applicants were paid five weeks wages in lieu of notice, calculated from 3 April 2020, together with other accumulated leave entitlements.
[19] Since the terminations of their employment, both applicants have unsuccessfully sought to obtain alternative employment. The applicants have sought reinstatement with backpay and continuity of service as remedy for their alleged unfair dismissals, or alternatively, monetary compensation.
[20] Ms Doust made oral submissions during the Hearing, and she also relied upon written outline of submissions documents dated 10 July 2020, that had been filed in respect of each application.
[21] Ms Doust commenced her submissions by indicating that there were no jurisdictional or underlying questions which in any way challenged that the applicants were persons who were protected from unfair dismissal. Ms Doust submitted that the determination of the applications was confined to the question of whether or not the dismissal of each of the applicants was harsh, unjust or unreasonable, and what remedy should follow if such findings were made.
[22] The submissions made by Ms Doust firstly traversed the relevant employment history of Ms Kosaroglu. Ms Doust noted that there had been no disciplinary or other issues of concern associated with the employment of Ms Kosaroglu before the allegations that gave rise to the 2018 investigation. Ms Doust stressed that there had been no disciplinary outcome in the sense of any punishment or sanction, arising from the 2018 investigation, and that it was relevant to note that Ms Kosaroglu had been prevailed upon to reconsider her resignation at that time.
[23] Ms Doust made further submissions which focused upon the seriousness of the allegations that have been made against both of the applicants, and the commensurate state of satisfaction that the Commission should adopt in respect to any relevant findings. In this regard, the submissions made by Ms Doust referred to various decided Cases which recognised and applied what is often described as the Briginshaw standard.
[24] Ms Doust submitted that the finding that had been made against Ms Kosaroglu which involved conduct that was found to have occurred on multiple occasions throughout 2016 whereby Ms Kosaroglu placed a child in a high chair while the other children played for periods exceeding 30 minutes, could not be confirmed to the requisite standard of proof. Ms Doust provided submissions which analysed in detail, various aspects of the material that had been provided during the AIS investigation and the responses that Ms Kosaroglu had provided during both the 2018 investigation and the 2019 AIS investigation. Upon analysis of all of this material, Ms Doust submitted that the Commission could not be satisfied to the requisite standard, that Ms Kosaroglu had engaged in misconduct involving some deliberate mistreatment of a child. Ms Doust submitted that the evidence disclosed that some of the witness material relied upon in both the 2018 investigation and the 2019 AIS investigation, failed to properly address circumstances where a child may be placed in a high chair for some legitimate management or safety purpose.
[25] In further submissions, Ms Doust raised the issue of waiver, as the conduct of Ms Kosaroglu in respect to the alleged use of highchairs, had been dealt with following the 2018 investigation, and the employer had elected not to take disciplinary action but instead refused the resignation that was offered by Ms Kosaroglu at that time. Ms Doust stressed that the proposition regarding waiver was an alternative submission, and that the primary position of Ms Kosaroglu was that at no time did she place any children in highchairs as some form of punishment or behavioural management.
[26] Ms Doust made further submissions which addressed evidence that was advanced by Mr Erdogan whereby it was asserted that reasons in addition to “the highchair conduct” that was sustained by the AIS investigation, provided the basis for the dismissal of Ms Kosaroglu. Ms Doust submitted that the further reasons that were proffered by Mr Erdogan to support the dismissal of Ms Kosaroglu, were not matters that were raised in the show cause process. Ms Doust submitted that these further reasons for dismissal could not be relied upon because they were matters that were not raised with Ms Kosaroglu at the time of the termination of employment.
[27] In addition, Ms Doust made further submissions which analysed the evidence in respect of each one of the further reasons and in each instance it was submitted that there was insufficient basis to support any finding that the conduct as alleged did actually occur. Ms Doust noted that the AIS investigation had not sustained allegations of particular conduct that Mr Erdogan sought to rely upon. Ms Doust submitted that these further reasons for dismissal could not represent valid reasons.
[28] The further submissions made by Ms Doust traversed the employment record of Ms Oz. Ms Doust noted that prior to the allegations that were raised in August 2018, Ms Oz had not been the subject of any disciplinary action. Ms Doust made submissions which analysed evidence in respect to the one allegation that the AIS investigation had sustained against Ms Oz. This allegation involved conduct said to have occurred during 2016, and which involved Ms Oz grabbing and pulling the ears of a child and using words to the effect, “These are for listening.”
[29] Ms Doust submitted that the reason for the dismissal of Ms Oz involving the alleged ear pulling, was not a valid reason for dismissal because the Commission could not be satisfied to the requisite standard, that the conduct had in fact occurred as described. Ms Doust made submissions which examined the detailed evidence and responses that had been provided in respect to the alleged “ear pulling” incident. Ms Doust submitted that the evidence disclosed significant uncertainty about the level of actual physical contact that Ms Oz made, as Ms Oz did not deny making conduct which involved only gently touching the child’s ears.
[30] In respect to Ms Oz, Ms Doust also made submissions which raised the issue of waiver. Ms Doust submitted that the employer had determined not to take disciplinary action in respect of the ear pulling allegation which had been the subject of the 2018 investigation. Ms Doust submitted that the employer was not entitled to rely upon a matter that it had previously not treated as misconduct in 2018, to subsequently provide valid reason for dismissal following the 2019 AIS investigation. Once again, Ms Doust stressed that the submission regarding waiver was an alternative submission, and that primarily it was submitted that the Commission should not be satisfied that the ear pulling incident represented misconduct.
[31] Ms Doust also made submissions about reasons that Mr Erdogan sought to rely upon to support the dismissal of Ms Oz other than the ear pulling incident that was the one allegation sustained by the AIS investigation. Ms Doust submitted that these other reasons could not represent valid reason for dismissal because they had not been included in the show cause process. In addition, Ms Doust made submissions which analysed each one of the other reasons, and upon this analysis she submitted that the evidence established sound basis to reject any finding that the nature of the conduct involved some form of misconduct.
[32] In summary, Ms Doust submitted that the dismissals of the applicants were harsh, unjust and unreasonable. Ms Doust submitted that the applicants both sought the primary remedy of reinstatement and that such an outcome was appropriate, particularly having regard for the personal circumstances of each of the applicants, and their long employment records. Alternatively, Ms Doust submitted that each of the applicants should be provided with compensation of the maximum available amount.
[33] Ms K Lopes presented the case for the employer and she submitted that the dismissals of the applicants were not unfair. Ms Lopes referred to written outline of submissions documents dated 7 August 2020, and she supplemented this material with verbal submissions during the Hearing.
[34] The submissions made by Ms Lopes first referred to the circumstances of the dismissal of Ms Kosaroglu. Ms Lopes submitted that there was a valid reason for the dismissal of Ms Kosaroglu and that reason involved the applicant engaging in conduct in 2019 that was similar to that which she had been found to have engaged in, in 2018. Ms Lopes said that this resulted in the employer losing trust and confidence in Ms Kosaroglu’s ability to perform her role.
[35] Ms Lopes made submissions which referred to extracts from the AIS investigation report which concerned the allegation (1a) that in term 1 of 2019, Ms Kosaroglu had grabbed a child by the wrist and raised him, and then put him back down on the ground hard (the wrist incident). Ms Lopes noted that although the AIS investigation had not led to a finding that this allegation had been sustained, it did mention that “Based on Ms Kosaroglu’s admission that contact was made, it is determined that the alleged conduct occurred.”
[36] According to the submissions made by Ms Lopes, the wrist incident was conduct that justified the termination of the employment of Ms Kosaroglu in circumstances where she had been warned about inappropriate conduct in September 2018. In support of this submission, Ms Lopes stressed that there was a distinction to be made between conduct that the AIS investigation found to be reportable conduct for the mandatory reporting scheme, compared to a finding that an incident occurred for the purposes of discipline or misconduct.
[37] Ms Lopes made further submissions involving an incident that occurred in 2016 and which involved Ms Kosaroglu instructing one of the child care centre staff to put sticky tape on the mouth of a child as a form of discipline because the child had repeatedly used offensive language (the sticky tape incident). Ms Lopes submitted that putting sticky tape on a child’s mouth is never an appropriate form of behaviour management, regardless of the size of the tape or the length of time that was applied. Ms Lopes noted that Mr Erdogan had described the sticky tape incident punishment as inhumane. Ms Lopes submitted that the employer took remedial action in 2018 to address inter alia, the sticky tape incident, and it had not acted to condone or waive the conduct of Ms Kosaroglu in respect of the sticky tape incident.
[38] Ms Lopes submitted that Mr Erdogan had formed the view that Ms Kosaroglu engaged in a pattern of ongoing behaviour that was in one instance, found to be sustained by the AIS report and in other instances amounted to repeated breaches of the employer’s code of conduct. In these circumstances, according to the submissions made by Ms Lopes, Mr Erdogan made the decision to terminate Ms Kosaroglu’s employment because he had lost trust and confidence in her ability to perform the role of Nominated Supervisor.
[39] The submissions made by Ms Lopes next involved the circumstances surrounding the dismissal of Ms Oz. Ms Lopes submitted that although Ms Oz had been provided with a letter from the employer in 2018 regarding her misconduct, she had engaged in similar conduct in 2019, and this ultimately resulted in the employer losing trust and confidence in her ability to continue in her role.
[40] Ms Lopes submitted that in a similar fashion to the wrist incident that involved Ms Kosaroglu, the AIS investigation had not sustained a finding of reportable conduct but did establish that an incident occurred in respect to an allegation, identified as allegation (3). In brief, this allegation asserted that in either the end of term 1 or start of term 2, Ms Oz yelled and screamed at a child and in the course of doing so told the child inter alia, that he could not go home alone because he could not protect himself in the event that a thief entered his house (the home alone incident).
[41] The submissions made by Ms Lopes analysed various aspects of the AIS investigation report which dealt with the home alone incident. Ms Lopes submitted that the manner in which Ms Oz dealt with the child during the home alone incident was wholly inappropriate and failed to take into account the potential psychological impact of her words on a child of the tender age, being under 5 years of age. Ms Lopes said that the words that Ms Oz used in describing stranger danger were inappropriate in the context, especially if made in a raised tone across a busy room.
[42] Ms Lopes also made submissions that challenged that aspect of the AIS investigation report which considered whether Ms Oz’s conduct in respect of the home alone incident breached the employer’s code of conduct, and she stated that there was insufficient evidence to make a determination on whether this incident breached the employer’s code of conduct. Ms Lopes submitted that the investigator had correctly found that the incident occurred, however the employer submitted that Ms Oz engaged inappropriately with the child contrary to the employer’s code of conduct.
[43] Ms Lopes made further submissions which referred to the process that involved the applicants being provided with preliminary investigation findings, inviting responses, and subsequently following the final investigation findings, the implementation of a show cause process. Ms Lopes submitted that this process ensured that the applicants had not been denied procedural fairness.
[44] Ms Lopes made further submissions regarding any relief that might be provided to the applicants and she strongly opposed any reinstatement of the applicants. Further, it was submitted that if contrary to the employer’s primary submissions, the Commission found that the dismissals of the applicants were harsh, unjust or unreasonable, any remedy of compensation in addition to the 5 weeks’ notice that was paid upon termination, was challenged.
[45] In summary, Ms Lopes made submissions which asserted that the applicants had been dismissed for valid reason, and by way of proper process. The submissions of the employer asserted that the dismissals of the applicants were not harsh, unjust or unreasonable, and the applications for unfair dismissal remedy should be dismissed.
[46] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the 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.”
[47] In this case, there was no dispute that the matters were confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissals of the applicants were harsh, unjust or unreasonable.
[48] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 of the Act is in the following terms:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the 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 the FWC considers relevant.”
The Stated Reasons
[49] The applicants each received confirmation of termination of employment letters dated 6 April 2020. These letters referred to the show cause process undertaken in respect of matters that were identified in an earlier communication dated 11 March 2020. The show cause notice letters of 11 March 2020 relevantly stated: “I am therefore also writing to ask you to show cause why your employment with the College should not be terminated for the reasons set out in this letter.” (Emphasis added)
[50] In the case of Ms Kosaroglu, the show cause notice letter of 11 March then stated:
“As you are aware, the investigation and subsequent final findings letter dated 6 March 2020, sustained an allegation that you
‘…. disciplined and/or corrected male student, [redacted] (DOB [redacted]) in an unreasonable and seriously inappropriate or improper manner when:
On multiple occasions throughout 2016 you placed [redacted] in a highchair as “time out” while the other children played for periods exceeding 30 mins.”
[51] The finding set out above as identified in the letter to Ms Kosaroglu, can for convenience, be described as “the 2016 highchair conduct”. The letter did not make any mention of any reason other than the 2016 highchair conduct as the reason upon which the employer invited the applicant to show cause why her employment should not be terminated.
[52] In the case of Ms Oz, the show cause notice letter of 11 March then stated:
“As you are aware, the investigation and subsequent final findings letter dated 6 March 2020, sustained an allegation that you
‘… on one occasion during 2016, you disciplined and/or corrected male student, [redacted] DOB in an unreasonable and seriously inappropriate or improper manner when:
a. You grabbed and pulled [redacted] by his ears with both hands using words to the effect of, “these are for listening””
[53] The finding set out above as identified in the letter to Ms Oz, can for convenience, be described as “the 2016 ear pulling incident”. The letter did not make any mention of any reason other than the 2016 ear pulling incident as the reason upon which the employer invited the applicant to show cause why her employment should not be terminated.
[54] Both of the show cause notice letters of 11 March 2020 that were issued to each of the applicants then stated:
“The College considers your conduct as problematic for the following reasons:
• You have engaged in conduct that causes serious and imminent risk the health and safety of a child under your care;
• You have engaged in wilful and deliberate behaviour that is inconsistent with the continuation of your contract of employment;
• You have engaged in conduct that causes serious and imminent risk to the reputation of the College;
• You have breached the College’s Code of Conduct.”
[55] Consequently, the reason stated for the dismissal of Ms Kosaroglu was the AIS investigation finding of the 2016 highchair conduct, and the reason stated for the dismissal of Ms Oz was the AIS investigation finding of the 2016 ear pulling incident. The 2016 highchair conduct was the only matter that the employer required Ms Kosaroglu to respond to in the show cause process, and the 2016 ear pulling incident was the only matter that the employer required Ms Oz to respond to in the show cause process.
[56] The evidence that has been provided about both the 2016 highchair conduct and the 2016 ear pulling incident has not provided sufficient basis for the Commission to be satisfied that either of those events occurred as was found in the AIS investigation. The nature and level of inconsistency in the evidence that was provided by the individuals that allegedly witnessed these incidents could in large part, be attributed to the significant time period that had elapsed since the incidents were alleged to have occurred. Further, the Commission has had the benefit of observing the witness evidence that was provided by the applicants, and other witnesses, in person, during the Hearing. In these circumstances, the Commission rejects the AIS investigation findings in respect to the 2016 highchair conduct and the 2016 ear pulling incident.
[57] In any event, even if hypothetically the Commission accepted the AIS investigation findings in respect to the 2016 highchair conduct and 2016 ear pulling incident, it is unnecessary to provide a detailed analysis of the evidentiary inadequacies which do not support the findings made by the AIS investigation report, because the conduct of each of the applicants in respect of each of those incidents was known to, and dealt with, by the employer during the 2018 investigation. The stated reasons for the dismissals of the applicants involved conduct that occurred in 2016, which was identified and addressed in the 2018 investigation, but not repeated by either applicant at any subsequent point in time.
[58] It was plainly untenable and indefensible for the employer to dismiss the applicants in 2020, for reason of their alleged conduct in 2016, which in 2018, had been identified, addressed, and not repeated. The stated reasons for the dismissals of the applicants was conduct that was found to have occurred in 2016, was identified and dealt with in 2018, not subsequently repeated, and yet in 2020 it was described by the employer to be conduct that, causes serious and imminent risk to the health and safety of a child, wilful and deliberate behaviour that is inconsistent with the continuation of the contract of employment, and conduct that causes serious and imminent risk to the reputation of the employer.
[59] There was no evidence that either of the applicants repeated the 2016 highchair or ear pulling conduct after it had been discovered in the 2018 investigation. Indeed, one of the outcomes following the 2018 investigation involved the installation of CCTV cameras in the childcare centre which would monitor and presumably record any extensive highchair use or ear pulling.
[60] The employer could not rely upon the AIS findings which sustained allegations about conduct of the applicants that purportedly occurred in 2016 but which it had discovered itself in 2018, and at that time, contributed to the employer finding what it described to be malpractice in recent years. Consequently, the stated reasons for the dismissals of the applicant were not sound, defensible, or well-founded.
The Other Reasons
[61] The employer asserted that in addition to the stated reasons for the dismissals of the applicants, there were other reasons that Mr Erdogan had regard for, and which involved conduct whereby the AIS investigation had established that an incident occurred, but that the allegation had not been sustained. The employer contended that these other incidents, which occurred but did not involve a sustained allegation, represented conduct that breached the employer’s code of conduct and thus could be relied upon as valid reason(s) for dismissal.
[62] Notwithstanding the implications arising from circumstances whereby these other reasons were never clearly identified to the applicants as part of the show cause process, the Commission has nevertheless been required to examine the other reasons in order to determine whether or not they may have represented valid reason(s) for dismissal. The examination of these other reasons firstly requires an articulation of the premise upon which the employer asserted that conduct which, despite not being sustained in the AIS investigation reports, provided valid reason(s) for dismissal.
[63] The premise upon which the employer sought to rely upon conduct of the applicants other than that which had been included in the show cause process, namely, the 2016 highchair conduct and the 2016 ear pulling incident, involved the concept that there was a distinction that should be made between conduct that was the subject of allegations that the AIS had investigated and which had been sustained, and that which had not been sustained but nevertheless, confirmed that an incident occurred. The employer asserted that the allegation that had not been sustained, but nevertheless it had been established that an incident occurred, and this outcome allowed for the conduct of the incident to represent a breach of the employer’s code of conduct and thus represented valid reason for dismissal.
[64] There were two particular allegations which were investigated by the AIS and which were not sustained but were held to have involved an incident that had occurred, and these incidents were asserted by the employer to have represented a breach of the employer’s code of conduct. The first allegation of this type involved allegation 1 (a) made against Ms Kosaroglu and which has been described as the wrist incident. The second allegation of this type was allegation 3 that was made against Ms Oz and which has been described as the home alone incident.
[65] A detailed examination of the AIS investigation reports that were made in respect of Ms Kosaroglu and Ms Oz has provided important assistance in order to determine whether either the wrist incident or the home alone incident could be properly construed to represent a breach of the employer’s code of conduct.
The Wrist Incident
[66] Firstly, in respect to the AIS investigation report made into Ms Kosaroglu there were 4 identified allegations that were respectively categorized as allegations 1 (a), 1 (b), 2, and 3 (a).
[67] Allegation 1 (b) was the 2016 highchair conduct which the AIS investigation report found to be sustained. Allegation 3 (a) involved an incident of screaming and yelling at a child, and this was not sustained, but an incident was said to have occurred which was then assessed against the code of conduct. The AIS investigation report then concluded that the incident did not breach the code of conduct and it suggested that the matter might be dealt with by way of formal advice, counsel and/or guidance. Allegation 2 involved an incident of alleged pushing of a child which was not sustained, and there was no contemplation of any breach of the code of conduct undertaken. Allegation 1 (a) was the wrist incident, and this was not sustained, but an incident was said to have occurred. Importantly, the AIS investigation report made no contemplation as to whether the wrist incident, which was not sustained, but an incident was found to have occurred, breached the code of conduct.
[68] Therefore, the wrist incident, which the employer sought to rely upon as an allegation that was not sustained but which was found to have involved an incident to have occurred, was not the subject of any contemplation let alone finding, in respect to a breach of the employer’s code of conduct. The AIS investigation report did not support the proposition that was advanced by the employer that the wrist incident represented conduct that breached the employer’s code of conduct. Although the AIS investigation report undertook code of conduct assessments in respect of other allegations which were not sustained, it made no such assessment in respect of the wrist incident.
[69] The absence in the AIS investigation report of any code of conduct contemplation in respect to the wrist incident is reflective of the veracity that can be properly ascribed to the witness evidence that was provided in support of this particular incident. Further, an objective evaluation of all of the evidence that was provided in support of the wrist incident allegation further supports that the incident did not involve conduct on the part of Ms Kosaroglu that was in breach of the employer’s code of conduct.
The Home Alone Incident
[70] Secondly, in respect to the AIS investigation report made into Ms Oz there were 3 identified allegations that were categorised as allegation 1 (a), 2 (a) and 3.
[71] Allegation 1 (a) was the 2016 ear pulling incident which the AIS investigation report found to be sustained. Allegation 2 (a) was an allegation that related to a child that was required to put shoes on before going outside, and this was not sustained, and the AIS investigation report found the allegation to be misconceived. Allegation 3 involved the home alone incident and this was not sustained, but an incident was said to have occurred which was then assessed against the code of conduct. The AIS investigation report then concluded that no determination could be made on whether the incident breached the code of conduct, and it suggested that the matter might be dealt with by way of formal advice, counsel and/or guidance.
[72] Consequently, as the AIS investigation report was not prepared to make a determination as to whether the home alone incident involved conduct that breached the employer’s code of conduct, it is difficult to accept that the employer could somehow make such a determination. A careful examination of all of the evidence regarding the home alone incident leads to an inescapable conclusion that it did not involve conduct that breached the employer’s code of conduct. At most, the home alone incident may have represented a subjective misjudgement on the part of Ms Oz. Although, it did appear that Ms Oz successfully placated the agitations of the child who apparently went happily on his way after the incident.
The Sticky Tape Incident and The Allegations More Generally
[73] In respect to other reasons that may potentially provide valid reason for the dismissals, it is relevant to include some consideration of the sticky tape incident, and the allegations more generally. It was somewhat puzzling to observe that the sticky tape incident appeared to escape any examination in the AIS investigation. Although the sticky tape incident involved conduct that was admitted by Ms Kosaroglu, it was conduct that would seem to have been the most egregious and potentially reportable of all of the conduct under consideration. As a general observation, the various allegations that were raised against the applicants were provided unusual and fluctuating contemplation by the employer. The level of severity that the employer attached to particular conduct either alleged or admitted, appeared to alter in conjunction with the level of complaint and agitation raised by certain parents, as opposed to any consistent objective assessment.
[74] A manifest example of this unusual and fluctuating assessment of particular conduct was exhibited by the evidence provided by Mr Erdogan when, during the Hearing he provided the following evidence in respect to the sticky tape incident: “… I think, as an educator, to apply something on a mouth of a child is inhumane, so I don’t need to understand how thick that sticky tape is and how long that would be. Do you agree? So would you give your own child to a childcare centre that they will put sticky tape on their mouth, on the mouth?” 1
[75] The absence of any further examination of the sticky tape incident as part of the AIS investigation may have arisen because of the obvious difficulties that it would expose for the employer. It has been difficult for the Commission to reconcile how Mr Erdogan could seek to rely upon the 2016 highchair conduct or the 2016 ear pulling incident as providing valid reasons for the dismissals of the applicants in 2020, and yet, in 2020 as opposed to 2018, he apparently considered the sticky tape incident to involve the inhumane treatment of a child.
[76] The overall consideration of the totality of the evidence has presented a somewhat disturbing, inconsistent approach taken by the employer to the conduct of employees engaged in the childcare centre, including the applicants. In this case, the reasons for the dismissals of the applicants presented as an array of artificially constructed and inconsistently considered issues that were created with, in part, the intention to avoid disclosure of the employers past erroneous conduct. The stated reasons for the dismissals of the applicants involved conduct that if it did occur as was alleged, had been dealt with, and it had not been repeated. The other reasons that were proffered as reasons for the dismissals of the applicants have not been confirmed to represent breaches of the employer’s code of conduct as was asserted by the employer. Therefore the other reasons have not been factually established, and the array of reasons upon which the dismissals of the applicants were based do not represent, individually or in combination, reasons that were sound, well-founded and defensible.
[77] Consequently, the various reasons relied upon by the employer for the applicants’ dismissals do not represent valid reasons for the dismissals.
[78] The employer provided notification of dismissal by way of the confirmation of termination of employment letters dated 6 April 2020.
[79] The applicants were provided with an opportunity to respond to the stated reasons for dismissal, but they were not provided a proper opportunity to respond to the other reasons that the employer sought to rely upon as basis for the dismissals.
[80] There was no unreasonable refusal to allow the applicants to have the assistance of support persons during the discussions related to the dismissals.
[81] The applicants were not dismissed for unsatisfactory performance and this factor is not relevant.
[82] The employer is a business operation of some significant size, and therefore no concession or accommodation for the adoption of any inadequate or erroneous procedures would be appropriate.
[83] The employer engaged dedicated human resource management specialists and therefore no concession or accommodation for the adoption of any inadequate or erroneous procedures would be appropriate.
[84] The applicants both had long, successful, and unblemished employment records before 2018. Regrettably, the allegations that were made against the applicants in 2018 were not properly dealt with by the employer at that time. The subsequent 2019 allegations that were made against the applicants were in large part a product of the inadequate and erroneous approach that the employer adopted in respect to the 2018 allegations/conduct.
[85] It is relevant to observe that the circumstances that have underpinned both the 2018 and 2019 allegations that were made against the applicants introduce a series of subjective considerations that involve cultural and generational differences in respect to acceptable and appropriate behavioural management and development practices for children. The role of any parent, teacher, or childcare worker acting in loco parentis is often very difficult and challenging. Standards of acceptable child behaviour management change over time and vary across different cultural contexts.
[86] In many respects, the dismissals of the applicants represented the unfortunate consequences of changes in the standards of acceptable child behaviour management involving both cultural and generational differences. In contemporary Australia, the sticky taping of a child’s mouth does not represent an acceptable child behaviour management technique. However, previous generations would have likely experienced the threat of or actual application of mustard on the tongue, or a mouthwash of soap.
[87] Our society has moved on from times when physical punishment of children in one form or another was acceptable. Unfortunately for the applicants in this case, they were abruptly confronted with generational and cultural progress. However, having closely observed both applicants during their attendance in the witness box and at other times during the Hearing, it was manifestly apparent that both women were individuals of good character, neither of whom would deliberately harm a child. It was very unfortunate that the 2018 allegations made against the applicants were mis-handled, and it was very regrettable that sound remedial action was not taken at that time to properly ensure that the applicants adopted and maintained the generational and cultural changes that were clearly required.
[88] The determination of these unfair dismissal claims has focused upon an examination of the evidence concerning whether there was a valid reason or reasons, for the dismissals of the applicants. Upon careful examination of all of the evidence and submissions, there was no valid reason for the dismissals of the applicants.
[89] The stated reasons for the dismissals of the applicants involved allegations that an external investigator found to be sustained in respect to conduct that occurred in 2016. The conduct that the investigator found to be sustained was conduct that the employer had previously discovered and dealt with in 2018. Further, the findings of the external investigator have not been supported by the evidence that was adduced during the Hearing of these matters.
[90] The employer also advanced reasons for dismissal other than those that were stated in the employer’s show cause process. Upon examination of the evidence regarding the incidents which were said to have represented other reasons for dismissal, those incidents, when properly assessed, did not represent conduct that could be properly construed as a breach of the employer’s code of conduct.
[91] Consequently, neither the stated reasons for the dismissals of the applicants, or the other reasons for dismissal that were advanced by the employer, could be established to represent valid reason for the dismissals of the applicants.
[92] Upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissals of the applicants were harsh, unjust and unreasonable. Therefore, the applicants’ claims for unfair dismissal remedy have been established.
[93] The applicants have sought reinstatement as remedies for their unfair dismissals. In the circumstances, particularly as there were certain identified generational and cultural issues which underpinned the allegations that were made against the applicants, and these issues have not been satisfactorily addressed or reconciled with the school parent community, there is strong prospect that reinstatement of the applicants would be likely to create ongoing friction amongst the school parent community. Consequently, the Commission’s consideration of all of the relevant circumstances leads to the conclusion that reinstatement of the applicants would not be appropriate remedies.
[94] The Commission has decided that compensation would be an appropriate remedy for each of the applicants’ unfair dismissals, and consideration has been made of the factors which involve the quantification of any amount of compensation.
[95] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidance that can be identified in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 2 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 3 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide4; Balaclava Pastoral Co Pty Ltd v Nurcombe;5 and Hanson Construction Materials v Pericich6 (Pericich).
[96] Firstly, I confirm that Orders for payment of compensation to the applicants will be made against the respondent employer in lieu of the reinstatements of the applicants.
[97] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.
[98] There was no evidence provided which established that Orders of compensation would impact on the viability of the employer’s enterprise.
[99] The applicants, Ms Oz and Ms Kosaroglu, had been employed for periods of 20 and 21 years respectively. Ms Oz would have been likely to have received remuneration of approximately $1,322.00 per week if she had not been dismissed. Ms Kosaroglu would have been likely to have received remuneration of approximately $1,590.00 per week if she had not been dismissed.
[100] Given the lengthy service of both applicants, if the 2018 allegations had been properly dealt with, there was strong prospect that the applicants would have adopted and maintained the generational and cultural changes that were required, and thereby they would have avoided the 2019 allegations, and the subsequent dismissals from employment.
[101] In considering all of these issues, I have determined that the employment of the applicants would have, in each case, been likely to have continued for at least a further 6 months after their unfair dismissals.
[102] For the purposes of calculation of remuneration that the applicants would have received or would have been likely to receive if they had not been dismissed, I have considered that the employment of the applicants would have continued for at least a further 26 weeks. Therefore, the total remuneration that Ms Oz would have received in the notional period of 26 weeks following dismissal amounted to a figure of $34,372.00, and the total remuneration that Ms Kosaroglu would have received in the notional period of 26 weeks following dismissal amounted to a figure of $41,340.00
[103] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0 in both cases. Both applicants were paid an amount equivalent to 5 weeks remuneration in lieu of notice, and this payment has been deducted from the total remuneration figure for the notional period of 26 weeks following the dismissals.
[104] Thirdly, in this instance there was no established misconduct of the applicants, and consequently no reduction has been made to the amount of compensation to be provided to the applicants on account of any established misconduct.
[105] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicants by the manner of the dismissals.
[106] Fifthly, the amounts Ordered do not exceed the compensation cap as prescribed by s. 392 (5) of the Act.
[107] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, I have decided that the amount of compensation to be provided to Ms Oz should be a gross figure of $27,762.00, and the amount of compensation to be provided to Ms Kosaroglu should be a gross figure of $33,390.00.
[108] Accordingly, separate Orders [PR727329] and [PR727330] providing for unfair dismissal remedies in these terms will be issued.
COMMISSIONER
Appearances:
Ms L Doust, Counsel with Mr K Bolwell from Work Lawyers appeared for the Applicants.
Ms K Lopes, solicitor of Colin Biggers & Paisley Lawyers appeared for the employer.
Hearing details:
2020.
Sydney:
August, 31.
September, 1.
October, 23.
Printed by authority of the Commonwealth Government Printer
<PR727328>
1 Transcript @ PN1549.
2 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
3 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
4 John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.
5 Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.
6 Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.