Thomas v Jenny Pullen t/as Lighthouse Child Care Centre [2001] NSWIRComm 152

Industrial Relations Commission of New South Wales

CITATION : Thomas v Jenny Pullen t/as Lighthouse Child Care Centre [2001] NSWIRComm 152 PARTIES : Denise Thomas Jenny Pullen trading as Lighthouse Child Care Centre FILE NUMBER: IRC 1902 of 2000 CORAM: Harrison DP CATCHWORDS : Unfair dismissal - application refused LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 04/23/2001 DATE OF JUDGMENT: 07/10/2001

APPLICANT Mr M Mitchell Australian Liquor, Hospitality and Miscellaneous Workers Union, NSW Branch

LEGAL REPRESENTATIVES: RESPONDENT Mr D Viney, Solicitor Donovan Oates Hannaford Lawyers

JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP 10 July 2001 Matter No IRC 1902 of 2000

DENISE THOMAS & JENNY PULLEN T/AS LIGHTHOUSE CHILD CARE CENTRE

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 This matter concerns an application for relief from unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 ('the Act'); and an application for recovery of wages prosecuted pursuant to s380 of the Act, Small Claims During Other Commission Proceedings. 2 Arbitration proceedings took place at Port Macquarie Court House on 23 April 2001 consequent upon earlier proceedings before Mr Commissioner Cambridge in which it was established that the matter could not be resolved by agreement between the parties. 3 Mr M Mitchell of the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch ('the union') appeared with and on behalf of the applicant, Ms D Thomas. Mr D Viney, solicitor of Donovan Oates Hannaford, appeared on behalf of Jenny Pullen, trading as Lighthouse Child Care Centre ('the Centre'), the respondent employer. 4 At the outset of proceedings on 23 April Mr Mitchell and Mr Viney put that the application pursuant to s380 of the Act seeking recovery of monies made by the Union on behalf of Ms Thomas had been settled by agreement immediately prior to the commencement of arbitration proceedings. A joint application was put by the parties that consent orders pursuant to s174 of the Act be issued. The terms of settlement were put in transcript by Mr Mitchell and confirmed by Mr Viney , who subsequently tendered the form of orders sought (exhibit 12). Appropriate orders issue herewith. 5 The parties reported that the application pursuant to s84 of the Act seeking relief from unfair dismissal had not been resolved and accordingly arbitration proceeded in respect to that matter. 6 Mr Mitchell brought evidence from Ms Cheryl Cowley, a former employee of the respondent; and Ms Thomas. Mr Viney brought evidence from Ms Jenny Pullen, the owner and operator of Lighthouse Childcare Centre; Ms Patricia Smythe, a trainee assistant child care teacher presently employed by the respondent; and Nicola McKellar, employed as a child carer by the respondent. THE EVIDENCE 7 The evidence of Ms Thomas is that she had been employed in family day care for 10 years prior to working at a child care centre. 8 Ms Thomas deposed that she was awarded the Diploma of Childcare from the Central College of Childhood Education and Community Studies on 17 February 1999. In December 1999 she was awarded the Certificate IV in Community Services (Welfare) with distinction from the North Coast Institute of TAFE. 9 Ms Thomas deposed that she applied for a position at the Centre in mid 1999 and was interviewed by Ms Pullen. During the course of that interview Ms Pullen asked Ms Thomas to provide an example of a daily program suitable for two year olds to demonstrate that she had the skills necessary for the position. A copy of that program is attachment A to Ms Thomas' affidavit (exhibit 2). 10 It was Ms Thomas' evidence that she commenced employment with the respondent on a casual basis, then on a full time basis from 2 July 1999, until on or about 7 February 2000 when a roster was provided to her with effect from 10 February 2000 which reduced her hours from full time to 34 hours per week. 11 Ms Thomas' evidence was that she could recall only one occasion on which Ms Pullen appeared to have concerns about her work performance which she put was on or about 3 April 2000 when she was approached by Ms Pullen who said to her words to the effect: "The program must be implemented or heads will roll". 12 Ms Thomas' evidence is that she asked Ms Pullen: "Do you mean if we do not implement the program and keep the kids quiet Angie and I will be sacked?" 13 Ms Thomas deposed that Ms Pullen's reply was "No", followed by words to the effect: "I do not want you applying for jobs at other child care centres" 14 To which Ms Thomas replied: "I have to Jenny, because you have cut my hours." 15 Ms Thomas deposed that the union forwarded correspondence to Ms Pullen detailing various breaches of Award conditions and entitlements in respect to Ms Thomas on or about 7 April 2000. 16 Ms Thomas deposed that on or about Monday, 10 April 2000 Ms Pullen convened a meeting of all staff in respect to program implementation for two to three year olds. Ms Thomas deposed that subsequent to this meeting Ms Pullen appointed Ms Nicola McKellar as Co-ordinator of the Centre to supervise program implementation in respect to her and Ms Angie Carney. Ms Thomas' evidence is that she subsequently reviewed her program and the implementation of it with Ms McKellar, who she put said to her: "I cannot see the need for any changes, everything ran smoothly this morning." 17 Ms Thomas further deposed that she had discussed with both Ms Carney and Ms McKellar book shelves which she regarded as unsafe and was told by Ms McKellar: "Jenny put them there, before I can do anything about them I will have to speak to her." 18 In paragraphs 15, 16, 17, and 18 of her affidavit, Ms Thomas describes the events leading to the termination of her employment in the following terms: 15. On or about 13 April 2000 1 had 11 children to look after. I was in the Dolphin's room. Five of the children were aged under 2 years. Angie was also in the room. She had 8 children to look after. During the day Angie left the room, and the assistant, Trish left the room to go to the toilet. I was therefore left alone in the room with 20 children under the age of 3 years. At about this time I noticed one of the children, Jordan Davis pulling at the shelving on a bookcase. This bookcase had assorted toys on it and had begun to tilt as a result of him pulling on it. I rushed over to him to pull him out of the way. As I knelt down to talk to him another child, Harrison Nyberg pulled on the shelving on the bookcase and pulled it down on top of him. He began to scream.