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. 16. Jenny Pullen, Angie and Trish entered the room at this point and I then said to Angie words to the effect "Harrison pulled the shelving on top of himself as I was attending to Jordan". 17. I then attended at the nursery because I could bear screaming. When I entered the nursery I found three children screaming. I duly attended to them. 18. On or about 14 April 2000 at about 3.30 p.m. I was about to leave work for the day when I was called into Jenny Pullen's office. When I entered the room Jenny said words to the effect "Sit on that chair, I am going to have to let you go" I then said words to the effect "Why?" She then said words to the effect "Because you are not fulfilling your job description concerning implementation of your program." I then said words to the effect " The room doesn't work properly because of lack of staff. Can you provide that to me in writing." She then said I don't have to put anything in writing." I then said words to the effect "Well I guess you will be hearing from my Union." She then said words to the effect "'I don't care who you throw at me.' I then left the premises. 19 Ms Thomas deposed that on or about 9 July 2000 she found alternative employment with family day care in Port Macquarie. Ms Thomas deposed that she was out of employment for approximately 12 weeks and, at the time of hearing, continued to be employed in family day care and emergency crises care for the Department of Community Services. 20 The evidence of Ms Pullen confirms that of Ms Thomas in respect to her interview and commencement of employment. 21 In her affidavit (ex 5) Ms Pullen details a series of difficulties she put occurred in respect to Ms Thomas' employment, leading to the termination thereof. Ms Pullen deposed that Ms Thomas refused to participate in the Centre's cleaning routine; became involved in conflict with Ms McKellar concerning that issue; refused to refrain from involving herself with personal issues of clients, in particular offering a letter from the Centre to support one parent in custody proceedings; failed to implement the written program for children's developmental activities; had a tendency to favour some children and parents over others; and at times was overly firm in discipline. 22 There was disagreement between Ms Pullen and Ms Thomas concerning the bookcase at the center of the incident of 13 April 2000. Ms Pullen's evidence is that on Tuesday, 21 March 2000 she spoke with Ms Thomas about the bookcase, saying to her words to the effect: "I don't like that bookcase in that room, it doesn't seem stable enough " 23 To which Ms Thomas replied: "I think it should be OK especially if it is against the wall". 24 Ms Pullen deposed that she suggested that it be changed for a triangular bookcase in another room. 25 Ms Pullen's evidence was that Ms Thomas contended that there were too many children to implement programs which Ms Pullen refuted on the basis that staffing and enrolments were well within established ratios. 26 Ms Pullen set out her account of her discussion with Ms Thomas concerning program implementation at paras 19 to 24 of exhibit 5 in the following terms: 19. On Monday, 27 March 2000 Angie was on leave and the Applicant was on sick leave. I was therefore working in the Applicant's room. I observed that the children did not appear to be used to a routine. They appeared to be lost and unsettled not knowing what to do at any time. It was procedure in the Centre to have a routine program on the wall for the week. The program on the wall in the Applicant's room was two weeks old. Annexed at "O" is a copy of my diary entry for 27 March 2000. 20. On Monday, 3 April the Applicant returned to work and I asked to have a meeting with her. I said to her words to the effect of: "Denise your room had run very well while you were away. I want you to go in there and start doing your job the way it is meant to be done and I don't need to tell you again what that is". The Applicant said to me words to the effect of: "Are you going to fire me because the babies were crying?" I said: "Don't be silly I can't fire you because the babies were crying but if the reason they are crying all day is because you aren't implementing proper practices and procedures then that is a different story". The Applicant said to me: "Is that all?". She then returned to her room. Annexed at "P" is a copy of my diary entry for 3 April 2000. 21. On Monday, 10 April 2000 I called a meeting to sort out the Applicant's room. Angie also attended the meeting. Nothing was resolved. I decided to put Nicola in the room that day to sort out an established routine. Annexed at "Q" is a copy of my diary entry for 10 April 2000. 22. On Tuesday, 11 April 2000 a child was crying in the Applicant's room for what appeared to be ages. I went to find out what the reason was and when I arrived at the room I found all the staff sitting down for lunch. No one had gone for a break and no one was attending to the children. Annexed at "R" is a copy of my diary entry for 11 April 2000. 23. On Thursday, 13 April 2000 the Applicant was in charge of the room when a bookshelf fell injuring one child. There was a baby sitting on the floor and the bookshelf that fell missed the child by centimetres. The children were in the immediate supervision of the Applicant. The Applicant had eight children in her care with another staff member to assist. The bookcase fell because two children were climbing on it. Although the Applicant called out for the children to get off the bookcase she made no attempt to physically stop them. 24. As the situation was most dangerous and because of the Applicant's extremely poor implementation of programs, lack of supervision and observations I had no option but to terminate her employment. On Friday, 14 April 2000 I gave the Applicant a Notice of Dismissal. 27 The evidence of Ms Pullen is supported by contemporaneous diary notes (attachments E to R of ex 5). 28 The evidence of Ms Cowley was produced in affidavit form (ex 1). Ms Cowley supported her affidavit with oral evidence and was subject to cross examination by Mr Viney . 29 Ms Cowley deposed that she was employed at the centre for 22 months from October 1997 to November 1999 on a part time and casual basis. Ms Cowley deposed that she often worked with Ms Thomas, which she deposed she enjoyed and found that they worked well together and everything seemed to run smoothly. 30 It was Ms Cowley's evidence that she had never observed Ms Thomas act inappropriately in respect to the children and that Ms Thomas was always warm and loving towards the children, who responded in the same manner. 31 The evidence of Ms Smythe (ex 9) was that she has been employed at the centre from October 1999 as a Trainee Assistant Child Care Teacher. She was originally engaged in the kitchen facilities as a cook, subsequently transferring to child care duties. 32 It was Ms Smythe's evidence that she often worked with Ms Thomas; deposing that she found Ms Thomas very difficult to work with, that she constantly talked to her about other people behind their backs, appeared lazy and uncooperative, and appeared to have an attitude to cause trouble. Ms Smythe deposed that, on her observation, Ms Thomas appeared to lose patience with the children. Ms Smythe deposed that Ms Thomas regularly spoke to her about other teachers and Ms Pullen and made derogatory comments about the centre and her work, telling Ms Smythe at one point in the company of Ms Smythe's sister: "Jenny Pullen's not paying me the right amount of money. You watch out she'll do it to you … we should join the Union all together so we can get our rights". 33 Ms Smythe deposed that she had no complaint and found Ms Thomas' comments strange. 34 Ms Smythe's evidence was that she observed Ms Thomas at staff meetings, putting that Ms Thomas rarely participated, usually sitting through the meetings with her arms crossed. Ms Smythe deposed that she was aware that Ms Thomas had been warned several times with regard to her work. Ms Smythe described her observation of Ms Thomas in the final two to three weeks of her employment and the incident involving the bookshelves falling over at paras 6,7,8 and 9 of exhibit 9 in the following terms: 6. For the last two or three weeks that the Applicant was employed at the centre I was working in her room. I observed that she was not liked by the children, she was very short with the children and her demeanour and voice was very short. I remember that she would meet parents of a morning and appear very friendly, but as soon as the parents left the children were sent out to play and she had little further contact with them. 7. As one of the teachers it was the Applicant's responsibility to have in place a structure for the whole of the day. I observed that the Applicant did not follow any such structure and that the other girls working in her room therefore had to cover for her, to bear most of the responsibility for all of the children. 8. I also observed that the Applicant seemed to spend her time with children that she liked and other children she disregarded. Similarly, she would spend time talking with parents of children that she liked, but not with others. 9. I was present near the Applicant on the morning of 13 April 2000. I was in the bathroom with children helping them wash their hands. I could see the Applicant sitting at her desk. I heard a very loud crashing sound and looked up to gauge the Applicant's reaction to ascertain if I should do anything. The Applicant looked toward where the sound had come from, but appeared not to get up. I walked around to where the sound had come from and saw that a bookshelf had fallen over narrowly missing some of the children. I saw other staff attending to the children and picking up the bookshelf. I was shocked by the Applicant's lack of response in the situation. 35 Ms Thomas denied the allegation made by Ms Pullen, Ms Smythe and Ms McKellar as to conduct. 36 There is some difference in the evidence of Ms Thomas and Ms Smythe concerning the exact location of Ms Smythe at the moment of the bookcase incident. It is common to all witnesses that Ms Thomas was in the room 37 In her evidence Ms Thomas deposed that there was no desk in the room and that she had not been sitting at a desk. 38 Ms Thomas put that Ms Smythe had left the room to go to the staff toilet on the other side of the building, accessed by a corridor which passes by Ms Pullen's office. Ms Smythe put that she was in an adjacent bathroom. 39 A further difference between the parties is the presence of Ms Carney on 13 April 2000. The evidence of Ms Thomas is that Ms Carney was present. The evidence of Ms Pullen is that Ms Carney was absent. Ms Pullen's evidence was supported by the employee sign-in book (ex 6), in particular the entries for 13 April 2000 (ex 8) where Ms Carney is recorded as not signing in but off sick. Ms Thomas put that the book is wrong. 40 The evidence of Ms McKellar (ex 11) was that she graduated from the University of Newcastle with a Bachelor of Education in Early Childhood Teaching and has been employed in the industry since 1994, commencing her current employment with the centre in July 1999 as a Child Carer. 41 It was Ms McKellar's evidence that Ms Thomas was an employee at the same time as herself but they did not work in the same classroom other than on one occasion for one day. 42 It was Ms McKellar's evidence that she found Ms Thomas unapproachable and uncooperative, refusing to participate in rostered cleaning duties and refusing to explain classroom procedures to parents of new enrolments, which Ms McKellar deposed caused her some embarrassment when introducing new parents. There is a difference between Ms Thomas, Ms McKellar and Ms Pullen as to the date of this exchange. Ms Thomas denies it took place. Ms McKellar and Ms Pullen deposed that it took place in mid 1999 however, Ms McKellar was not married until December 1999 and accordingly did not use her married name, "McKellar', until after that date. The record of this event, if it occurred, made by Ms McKellar is in her married name, putting the event after December 1999. 43 Ms McKellar deposed that she noticed that Ms Thomas tended to spend time with the children she appeared to like and no time with those she appeared to not get along with and treated parents similarly. 44 Ms McKellar deposed that Ms Thomas would not participate to any great extent in staff meetings and after some time she and Ms Thomas did not speak to each other. SUBMISSIONS 45 Mr Mitchell submitted that the evidence did not support findings which satisfy the requirements of s88 of the Act. 46 S88(a) and 88(b) of the Act go to the reason for dismissal and an opportunity for the employee to made out a defence in the following terms: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate take into account; (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, 47 Mr Mitchell put that the termination of the applicant's employment was unfair because the respondent had no good reason to dismiss in accordance with s88(b). 48 Mr Mitchell contended that the applicant had shown that she had genuine difficulties in implementing a program that were simply not accepted by the respondent whom, he put, did not engage in any discussion with the applicant concerning the difficulties in implementing a program. 49 Mr Mitchell further submitted that the difficulties in program implementation did not arise until the first months of the year 2000 when he put the number of children under the applicant's care substantially increased. 50 Mr Mitchell submitted that the applicant could not be held responsible for what he described as "the bookcase incident", which he acknowledged was a matter of serious concern. Mr Mitchell contended that other employees had raised concerns in respect to the bookcase and that it was unfair to lay the blame solely upon the applicant. 51 Mr Mitchell further suggested that the union's action in writing to the respondent in respect to pay and conditions in February 2000 was an element in the termination of employment which is statutorily precluded and unfair. 52 Mr Mitchell submitted that Ms Thomas was not given a proper opportunity to respond to allegations, contending that Ms Pullen had made the decision to terminate Ms Thomas' employment prior to the meeting of 14 April 2000; and accordingly any response or defence offered by Ms Thomas was meaningless and futile. 53 Mr Mitchell further contended that there was no proper process followed by Ms Pullen in counselling Ms Thomas in respect to alleged poor performance, submitting that it was conceded that no formal warnings had taken place, the subject being dealt with in passing comments between Ms Pullen and Ms Thomas. 54 Mr Mitchell submitted that I should prefer the evidence of Ms Thomas over that of Ms Pullen, which he put supported a finding that the termination of employment was harsh, unreasonable and unjust. 55 Mr Mitchell put that Ms Thomas had been out of work for a period of 12 weeks and sought compensation to the amount of $6,279.48 for that period in respect to lost wages and such other amounts in compensation as determined by the Commission. 56 Mr Viney submitted that the evidence of all parties established clearly that there was a problem with Ms Thomas' work performance. Mr Viney put that the defence offered by Ms Thomas was that there were too many children in her care is not sustainable. Mr Viney put that this defence is defeated on the evidence that the number of children to the number of teachers was an unacceptable ratio when compared against Child Care industry standards and requirements. 57 Mr Viney submitted that Ms Pullen had taken ample steps to bring the problem of work performance to Ms Thomas' attention and provided her with the opportunity to correct her work practices. 58 Mr Viney further relied upon evidence brought from other employees at the centre to the fact that Ms Thomas' attitude and demeanour were unsatisfactory and that this was brought to her attention, and that she chose to disregard these warnings. 59 Mr Viney submitted that all of the circumstances of employment and work performance should be subject to consideration, which he put would lead to a conclusion that the termination of employment was indeed reasonable. 60 Mr Viney submitted that Ms Thomas' attitude and demeanour culminated in the bookcase incident of 13 April 2000. Mr Viney noted some variance in the evidence given by the parties as to the specific events. Mr Viney submitted that the evidence of Ms Smythe is worthy of close consideration as she was at the time in an adjoining room. Mr Viney put that the relevant evidence of Ms Smythe is that Ms Thomas was in her view at the time of the incident, and that upon hearing the crash of the bookcase she looked immediately to Ms Thomas who chose not to react or give the matter any real importance. 61 Mr Viney submitted that this lack of reaction was symptomatic of Ms Thomas' general attitude in her employment, supported by the evidence of her refusal to participate in staff meetings, selective communication with children and parents, and the disregard of directions given to her by the employer. 62 Mr Viney submitted that the claim by the union in respect to pay and conditions could not be a factor in the termination of employment as the correspondence was not received by the respondent until after the termination of employment. 63 Mr Viney relied upon the evidence of Ms Pullen that the bookcase incident and, in particular, the lack of response and acceptance of responsibility by Ms Thomas brought matters to a head. Mr Viney put that the circumstances of this event removed justification or need for any further warnings or counselling, circumstances having developed to a point beyond which the respondent could no longer tolerate. 64 In reply, Mr Mitchell put that there was a dearth of evidence by Mr Viney that Ms Thomas refused to participate in staff meetings and no evidence of selective communication towards parents or children, an issue not raised formally by anyone with the respondent or applicant. 65 Mr Mitchell submitted that continued employment for one and a half days post the bookcase incident was inconsistent with the respondent's attitude that this event had lead to an intolerable situation for which termination of employment was the available and proper remedy. CONSIDERATION 66 There is no evidence upon which a conclusion could be reached that the claim by the union in respect to pay and conditions had any bearing on the decision by the respondent to terminate the applicant's employment. 67 The matter turns on evidence as to conduct. The evidence of Ms Pullen is preferred as it is meticulously supported by contemporaneous diary notes tendered into evidence. 68 I prefer the evidence of Ms Smythe in respect to her location at the time of the bookcase incident and her observation thereof. 69 There is substantial evidence that the respondent was dissatisfied with the conduct of the applicant and had raised the specific issue of program implementation with her. 70 I am satisfied on the evidence in this matter that this issue was raised in an appropriately formal manner in order that the applicant could be regarded as aware that remedial action on her part was necessary. 71 The assertion that there were too many children in the room for implementation of a program is difficult to accept. This assertion is not supported by any action or contemporaneous report by the applicant going to this issue seeking change. The applicant's position is not supported by the views and attitudes of her colleagues in the workplace dealing with the same situation. 72 The evidence of the applicant's reluctance to participate in the cleaning duties and negative attitude in staff meetings is in itself of nominal significance, however it does, as Mr Viney suggested, provide an indicator of an unhappy and uncooperative working relationship. 73 I do not accept the submission that the respondent has failed to meet the requirements of s88 of the Act. 74 Ms Pullen had formed the view that she would terminate the applicant's employment and put this to her with the reasons on 14 April 2001. Ms Thomas offered a defence that was not accepted. 75 The facts in this matter lead to the conclusion that the termination of employment was neither harsh, unreasonable or unjust. 76 Accordingly, I decline to intervene. 77 Matter No IRC 1902 of 2000 is so concluded. 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 ORDERS Pursuant to s174 of the Industrial Relations Act 1996 the Commission orders by consent: 1. That without admission of the applicant's Section 380 claim that the following orders be made. 2. That the respondent pay to the applicant an amount of $1,148.07 representing payments for rostered days off and underpaid hourly rates within 28 days. 3. That the respondent do all things necessary to pay to the relevant superannuation fund or state body such sums that may be due and owing or assessed as owing with respect to any superannuation entitlement due to the applicant and that for the purposes of this order the respondent file any required documentation with the relevant superannuation authority within 28 days. I so order. RW HARRISON Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.