Cheryl Lang and Snow White Child Care Centre [1995] IRCA 2

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI No. 1220 of 1994 VICTORIA DISTRICT REGISTRY BETWEEN: Cheryl LANG Applicant AND: SNOW WHITE CHILD CARE CENTRE Respondent MINUTES OF ORDER 9 January 1995 Judicial Registrar Tomlinson THE COURT ORDERS THAT: 1. The allegations against the Applicant are dismissed. 2. The Respondent to pay to the applicant the sum of $6000 within one month of the date of these proceedings. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI No. 1220 of 1994 VICTORIA DISTRICT REGISTRY BETWEEN: Cheryl LANG Applicant AND: SNOW WHITE CHILD CARE CENTRE Respondent 9 January 1995 Judicial Registrar Tomlinson This is an application under section 170EA of the Industrial Relations Act 1988 ("The Act"). The Applicant seeks a declaration that the termination of 15 July 1994 by the employer Respondent was unlawful and, accordingly, that the employer compensate her for loss of wages. Further, an order is sought that all allegations are dismissed and an order together with such other relief as is deemed proper. The Applicant does not seek reinstatement. The Applicant was employed as a child care worker by the Respondent and, as such, shared the responsibility for caring for some 10 infants aged from 0 to 24 months. In her affidavit in support of her claim, the Applicant deposed that the disciplinary procedure prescribed by the lapsed Child Care Workers Award (Victoria) was not adhered to by the employer. Secondly, the Applicant was underpaid some $281.12 by the Respondent. This figure was put forward on behalf of the Applicant. The court was advised that the classification of the Applicant as a level 2 child care worker is the subject of a determination in another place. Allegations of physical abuse by the employee applicant to the children concerned were not appropriately investigated by the employer. This is the second allegation of the Applicant. Thirdly, it was alleged the employer breached the Children's Services Regulations 1988 (Victoria) by failing to report these allegations. Fourthly, the employer failed to ensure that the employee was afforded procedural fairness in relation to the investigation of the allegations and further in relation to the termination by the employer. The Applicant stated that she had been employed as a qualified child care worker by the Respondent from January 1992 until 15 July 1994. At the time of her dismissal she was in charge of a babies room and she had an assistant, a Ms Melinda Robinson. There were various issues and reasons put forward during the course of this hearing of the application for termination. Paragraph 34 of the statement of the applicant which was read by the applicant admitted into evidence stated: "I believe that my employment was terminated because I was the only employee who refused to sign the employment agreement given to me by the Snow White Child Care Centre. I also believe that my union membership was a cause of concern to the centre. I was the only member of the union at the Snow White Child Care Centre." Tendered to the Court were copies of correspondence between the Union and the Respondent concerning the working conditions of the Applicant. It cannot be said that the relationship between the union, the employer and the Applicant was harmonious. Mr James Eldridge testified the reason for the termination, the primary reason, was the alleged physical abuse by the Applicant of infants who were placed in the babies room, infants who at the time were aged under two of age. Accordingly, it will be necessary to analyse those allegations in details. In relation to the dismissal, the Applicant stated: "At about 2.35 pm, Jim Eldridge came into the child care centre and not long after Colleen came into the babies room and asked me to come into the kitchen. When I went into the kitchen there was Jim Eldridge, Carleen Eldridge-Smith and the kindergarten teacher, Fiona. I was informed by Jim Eldridge that my employment was terminated because it had been reported that I had physically abused one of the children." The Court was subsequently advised by the applicant that on the day in question, 15 July 1994, she was not advised by James Eldridge, a co-proprietor of the respondent, that he had evidence of allegations of physical abuse. It should be pointed out at this stage that the directress of the Respondent is Mrs Carleen Gay Eldridge-Smith. She is a co-proprietor of the Respondent, together with her parents, Mr James Arthur Eldridge and his wife, Mrs Jenny Eldridge. The husband of the directress is Mr Ian Smith who is employed by the Snow White Child Care Centre as a handyman. He apparently works there every day. The Applicant advised the court that the person who actually terminated her services was Mr James Eldridge and that he visited the centre approximately one day per month. Further, that after the termination, the Applicant was instrumental in collecting signatures to a document which was forwarded to the Respondent protesting at the treatment accorded the Applicant. A witness on behalf of the Applicant, Ms Adrienne Osborne, stated that she had two children for over a four and a half year period at the centre. A close bond was demonstrated between the applicant and the children of Ms Osborne. Ms Osborne advised the Court: "Around the time of Cheryl's dismissal, I had put Erin on a waiting list at another centre and when Cheryl was sacked I became even more determined to take her out of Snow White and put her name on another waiting list for a child care centre. I then thought about what I could do because I considered Cheryl's sacking to be unfair and totally outrageous. I talked to several other parents in the car park at the centre at various times and they all had similar feelings. I decided to write a letter to the centre on the basis that as parents we had a right to be informed and involved. I wrote the letter on behalf of all the parents who signed it. The letter was subsequently sent to Snow White. To date, I still have not received a reply to the concerns expressed in the letter." Later on, this witness stated: "When I heard of Cheryl's sacking, I was astonished and I could not believe it because Cheryl would never have hit a child. I just don't believe she is capable of it." I would like to say I found Ms Osbourne to be a most credible and responsible witness. Her involvement with the centre was nearly at an end when she organised this letter of protest. She had nothing to gain; if anything, she may well have stood to lose. Our society needs to hear from citizens who are prepared to speak on behalf of their ideals, ideals which show concern for the weak and for the powerless. Perhaps in so speaking, the rights of voiceless ones may be better protected. In his affidavit, sworn 12 December 1994, Mr James Eldridge stated he was a co-proprietor of the respondent. In his evidence, Mr Eldridge stated he was responsible for a variety of management areas including security and industrial relations. To this end, the witness attended seminars organised by state and federal bodies and stated that if he was not sure of particular regulation he would look it up. The witness advised the Court his affidavit dealt with all the matters which were relevant to the employment of the Applicant and which were considered. Paragraph 10 of his affidavit of 12 December 1994 states: "I had previously been advised by a parent that he had seen Cheryl Lang smack his daughter on the lower back on 31 May 1994 and, as I did not wish to involve the parent in a staff issue, I did not raise this matter with Cheryl Lang at that time. Instead I determined we would simply keep a close watch on Ms Lang to see if this was a one-off incident or if there were any further instances. I was, however, satisfied the complaint was genuine." Paragraph 11 states: "I was advised in writing by an employee of the centre, Romina Carretta, that she had observed Cheryl Lang hit a child across the legs on 16 June 1994 at 12.25 pm (appendix D)." Paragraph 12 states: "I was further advised in writing by Romina Carretta that she had witnessed Cheryl Lang hit a child on the hands at 3.30 pm on 20 June 1994 (appendix E)." Paragraph 13 states: "The children involved in the two incidents during June were 15 to 20 months old at that time." Under cross-examination, it was elicited from this witness that the parent in paragraph 10 was his son-in-law and the handyman at the centre, Mr Ian Smith. Appendix F to this affidavit of Mr Eldridge states: "Snow White Child Care Centre. Breaking of the following rules will result in, (inter alia), point 3: verbal or physical abuse of child/children." The witness stated he placed a copy of these rules in the kitchen plainly for all to see. At the time of the incidents of 16 June and 20 June referred to in paragraphs 11 and 12, the witness stated he was overseas on government business, together with his wife. He stated the directress of the centre contacted him to discuss these incidents. He stated he advised his daughter, the directress to wait until his return to Australia before presumably giving the Applicant notice of the allegations of an opportunity at least to deal with the matter. The Court heard evidence the witness waited some considerable time before giving the applicant notice of these allegations. I find it incredible that Mr James Eldridge stated to the court that he was responsible for administering of industrial relations and, to that end, affixed a notice in a public place setting out the rules warranting instant dismissal. And yet, in paragraph 10 of his affidavit, he refers to a breach of those rules, and he, by his own admission, failed to follow those rules. I find the statement of the witness, Mr Eldridge, that he "Did not wish to involve the parent in a staff issue" when he advised the Court that the issue was "physical abuse of a child aged from 0 to 24 months" to be a complete dereliction of duty as a hands-on manager and co-proprietor of a child care centre. On the statement of this witness alone and at the close of evidence on the first day I found I had to agree with paragraph 2(h)(ii) of the affidavit of the application which states: "The allegations of physical abuse by the employee to the children concerned were not appropriately investigated by the employer." It was this dereliction of duty given to this Court under oath which seemingly had the potential to place babies at risk of physical abuse which led me to seek opinion from the bar table as to whether a transcript of these proceedings should be forwarded to the relevant authorities. To my mind, the credibility of the witness, Mr James Eldridge, was an issue central to these proceedings as the Respondent relied so heavily upon his testimony. The Court heard from Mr James Eldridge that upon learning whilst he was overseas of two further complaints of physical abuse against the Applicant, he determined the course of action which the directress and presumably the person entitled to be licensed or accredited to run the Snow White Centre should take. Again, I find this a total abrogation of his primary duty, a strong moral duty which the witness had towards infants in his charge at the Snow White Child Care Centre. Taken in conjunction with the earlier incident on March 31, I can only wonder at the suitability of this witness to be an active hands-on co-proprietor involved in the running of a child care centre. This Court has a duty in the public interest to be involved in the running of a child care centre. This Court has a duty in the public interest to be involved in such matters. This conjecture, on my part, brings me back to the second time involving the credibility of the witness of Mr James Eldridge. Mr Eldridge stated that prior to his meeting with the witness on 15 June 1994, he had sought advice on the incidents which occurred on 16 June and 20 June 1994. In light of the issue of credibility, I propose to deal with those allegations as detailed by other witnesses. It should be noted that a staff appraisal interview was conducted by Mrs Jenny Eldridge in April 1994. The appraisal was that of the performance of the Applicant, Ms Lang. It should be noted Mrs Jenny Eldridge is the wife of Mr James Eldridge and the mother of the directress, Ms Carleen Eldridge-Smith. The staff appraisal record was tendered in evidence and it showed the Applicant from all angles was performing her duties well in the eyes of the employer to the point of being well above average. The Court heard evidence from a former co-worker who told the Court that she believed the Applicant would not have physically abused babies. I find this witness to be a credible witness. The Court heard evidence of the termination of another employee, a Ms Kelly Milligan. There were complaints allegedly made against Ms Milligan as to her treatment of her infant charges. Mrs Carleen Eldridge-Smith advised the Court the complaints were of a serious nature and so Ms Milligan was summarily dismissed. There was no evidence on behalf of the respondent that a consultative process was embarked upon prior to this dismissal either with the responsible child care authority or, indeed, the other co-proprietors. On behalf of the Respondent, evidence was given by Ms Romina Carretta. Ms Carretta is still employed by the Respondent and I have to say it is my practice to treat such evidence as was tendered with caution. The factual evidence of Ms Carretta differed from the factual evidence of the directress, Ms Carleen Eldridge-Smith in relation to the two written reports of alleged physical abuse, on 16 June and one on 20 June 1994. Of necessity, less weight has been accorded to the evidence of this witness. Mrs Carleen Eldridge-Smith advised the Court that she is the directress and a co-proprietor of the child care centre. She is part-way through a course at a college in Prahran as a child care practitioner. No date was given as to her expected successful completion of this course. It was pointed out to the representative of the Respondent that for the first seven or eight paragraphs of Mrs Carleen Eldridge-Smith's affidavit and that of her father, Mr James Eldridge, were virtually identical. This fact, coupled with the contradictory evidence given by witnesses on behalf of the Respondent reinforces my view the issues in this case must be determined upon credibility. Mrs Carleen Eldridge-Smith stated she advised Mrs Anne Young of the Child Care Centres Association of Victoria of the allegations of physical abuse against the Applicant, Ms Cheryl Lang. There was no proof provided this contact has been made. I am forced to discount this part of the evidence of Mrs Carleen Eldridge-Smith. When an allegation of physical abuse was made against the Applicant on 31 May 1994, Mrs Carleen Eldridge-Smith stated that she did not telephone Mrs Anne Young of the Child Care Centres Association of Victoria. She stated that it was her husband who had made the complaint, that the child was the child of her husband and herself and that she believed her husband as he was not a liar. Mrs Eldridge-Smith told the Court that in relation to this incident she had: "Given the applicant the benefit of the doubt and so this was the reason the matter had been taken no further." I am of the view that if the matter was so serious that a father of the child reduced his complaint to writing, the directress had a strict responsibility to both report the matter and, additionally, to instigate a thorough investigation. Neither of these things were done. Accordingly, I am unable to conclude that the smacking incident of 31 May ever took place. Mrs Carleen Eldridge-Smith stated her version of events concerning the incidents of 16 and 20 June. Her version of events is at odds with the version put forward by her employee, Ms Romina Carretta. Having considered the evidence of Mrs Carleen Eldridge-Smith, I have to say I am again forced to discount her statements concerning the alleged physical abuse incidents on 16 and 20 June 1994. That brings me to the termination meeting itself. The program co-ordinator of the centre was not called. All of the remaining three witnesses who attended the meeting on the afternoon of 15 July 1994 gave differing accounts of what happened. The directress and her father could not agree on the facts, particularly as to something as vital as the signing of the letter of termination. I am forced therefore to discount the evidence of the witnesses for the Respondent and make the finding the Applicant was not accorded procedural fairness in the manner in which her services were terminated. There has been no proof of any substance that any of the three allegations involving physical abuse of infants by the Applicant ever in fact took place. One must therefore ask why the Applicant was terminated. The answer can only be as put to the Court by the represent of the Respondent that the Applicant, Mrs Cheryl Lang, stood up for her rights and involved her Union in disputes she had with the employer Respondent concerning her working conditions. On behalf of the Respondent, it was stated the employer was entitled to dismiss the Applicant summarily under section 170DB (b). That section deals with serious misconduct. I do not find there has been serious misconduct on the part of the Applicant and so I cannot agree with this assertion. I have considered in detail the problem as to whether the transcript of these proceedings should be forwarded to the relevant authorities for a thorough and detailed investigation. Mr Maloney on behalf of the Respondent advises me the Respondent centre is currently undergoing an exhaustive accreditation procedure at the instigation of the Federal Government. That should be inquiry enough. If there had been any substance to any of the allegations made I would, of course, have had no hesitation in forwarding these papers to the attention of the relevant authority. Accordingly, I find the termination of Cheryl Lang contravened Division 3 of Part VIA of the Industrial Relations Act. I order that all allegations made against this Applicant be dismissed. I find the employer to have breached section 170DC of the Act and has failed to afford this Applicant the opportunity to respond to the allegations made. I find the employer, contrary to the evidence tendered on its behalf, in fact terminated the Applicant for her Union activity and accordingly contravened section 170DF(i)(b). I draw your attention to section 170EE which deals with the remedies this Court may grant. I find reinstatement, upon the advice of the representative for the Applicant, to be impossible. I order the Respondent to pay to the applicant the sum of $6000 in one month of the date of these proceedings.