Industrial Relations Commission of New South Wales CITATION: Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division (on behalf of Vicki Ford) and Gosford City Council [2005] NSWIRComm 1012 APPLICANT Vicki Ford PARTIES: RESPONDENT Gosford City Council FILE NUMBER(S): 3960 of 2001 CORAM: Patterson C CATCHWORDS: Termination of employment - unfair dismissal - director of child care centre - Decision No. 1 (10 December 2004) found in favour of Applicant - relief not prescribed - parties ordered to confer and report - no settlement achieved - outcome to be decided by Commission - reinstatement or re-employment opposed by Respondent - Held - reinstatement as Director considered inappropriate - order issued for re-employment at a lower level with re-imbursement for income and benefits lost to be calculated at the lower rate LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 12/10/2004; 01/11/2005 DATE OF JUDGMENT: 01/21/2005 APPLICANT Mr M Barnes SOLICITOR LEGAL REPRESENTATIVES: White Barnes RESPONDENT Mr J Murphy of counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PATTERSON, C 21 January 2005 Matter No IRC 3960 of 2001 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division (on behalf of Vicki Ford) and Gosford City Council (No. 2) Application by Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division on behalf of its member Vicki Ford re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 SUPPLEMENTARY DECISION [2005] NSWIRComm 1012 1 This decision flows from my consideration as to appropriate and realistic relief for the applicant, Vicki Ford, as a consequence of my earlier findings (published 10 December 2004) into the matter of her termination of services as "authorised supervisor" (director) of Terrigal (long-day care) Children's Centre (the "Centre") which is one of seven centres managed and operated by Gosford City Council (the "Council"). 2 As noted in that decision Mrs Ford had enjoyed a long period of service with Council, including almost ten years in her position as "Director", when she became the subject of a wide range of complaints from a majority of her staff in matters concerning her management style and alleged abuse of certain children whilst under her care. 3 Those complaints, as progressively made known to Council, were then referred to the Department of Community Services' ("DOCS") who embarked upon a so-called "investigation" by process of interviewing most (not all) relevant staff and Council's management. 4 That "investigation", which has since been found by this Commission as presently constituted to have been seriously flawed - both in form, and process contrary to accepted principles and contrary to the Ombudsman's Guidelines ("a hunt for a scalp rather than a search for truth"), culminated in DOCS' Report which considered inter alia Mrs Ford as unsuitable to continue as "authorised supervisor" as she did not satisfy the Department's criteria. 5 That "Report", and the documents in support which were not fully disclosed to the applicant or the respondent prior to these proceedings before the Commission, led to an interpretation by Council that Mrs Ford not only failed to meet DOCS' requirements to continue in her position as "authorised supervisor" of the Terrigal Centre but, also, at any of its other six facilities. Neither could she occupy, in Council's assessment, any other (lesser) "primary contact "(teaching)" position at Terrigal or elsewhere. 6 The "Report", which had been scathing in its findings as to Mrs Ford's handling of certain children, her management of the place and alleged treatment of staff had been - on my assessment of the evidence - founded inter alia upon a combination of inaccurate presumption and innuendo. 7 Both the process and the Report "findings" were described by me as an "utter disgrace …primitive to the extreme … further flawed by its proliferation of in-exact proofs, at times contradictory within themselves and/or evidence adduced … confirmed DOCS' over-excessive intrusion into management prerogative/staff relationships … reinforced by so-called background material about which it denies it relied upon but, clearly, did rely upon …". 8 And, although Council had earlier committed itself to investigating the so-called staff/management issues it did nothing - having felt totally excluded by DOCS' approach to investigating all issues raised including many which had never been previously mentioned to Council. 9 As the so-called "investigation" outcome was presented to Council it then accepted - without question - all of its contents, and in the absence of any enquiry on its own, then sealed Mrs Ford's fate in the decision to terminate her services. 10 As noted in my decision: "Council seems to have been overwhelmed by DOCS' approach to investigating the complaints. Faced with its own interpretation of an emerging dilemma it chose to abdicate its responsibilities by placing its earlier - stated intention to examine management/staff issues into indefinite suspension". [229] "After taking the difficult decision to discharge Mrs Ford following several weeks in deliberation of the DOCS' Report it seems that Council then considered any such audit of staff issues to be no longer necessary. With Mrs Ford's departure the problem(s) was/were gone!" [230] "In adopting the DOCS' Report in the manner that it did, whatever the contradictions as to Mrs Ford's "fitness" to continue contact with the children - at any level - Council has fallen into serious error in having made no attempt to discharge its onus of proof in relation to any of DOCS' findings". [231] "Whilst the evidence does disclose a serious problem in Mrs Ford's management of the Centre and, perhaps suggests some occasional problems in her demeanour towards certain staff, and possibly, certain children the evidence does not support the "grave" allegations made against her." [252] "Had DOCS, and Council, followed valuable advice provided via publications of the Ombudsman - at the very least - the worse scenario to emerge from this unfortunate episode might have been her transfer to another centre operated by Council as authorised supervisor or in a lesser position." [253] 11 Having determined Mrs Ford's removal from Council's service as "harsh, unreasonable and unjust" due to its sole reliance upon the (flawed) "investigation" by DOCS, I also made reference to a number of matters which, I had hoped, might have then been of assistance in the parties subsequently conferring as to a reasonable outcome. "For the damage inflicted upon Mrs Ford's professional (and possibly her personal) reputation largely due to DOCS' gross mishandling of the complaints is no doubt a matter for further discussions between she and her solicitors". [263] "For the loss of earnings sustained since her termination an order of compensation equivalent to the six-months' ultimate of this Commission's jurisdiction would hardly compensate for her accumulating losses since dismissal." [264] "In considering a reasonable form of relief - six months' compensation, or reimbursement/re-employment at a level to be determined together with some considerate re-imbursement towards financial loss, I favour the latter in the absence of any further submissions as to her current circumstances, to be most appropriate in a genuine attempt to salvage her reputation." [265] "However, whether or not DOCS would accept responsibility for their majority part in the damage caused to Mrs Ford, I have decided to refer the parties into conference as to an appropriate outcome prior to my consideration as to the matter of orders to be issued if this becomes necessary." [266] "Accordingly, I direct the parties to confer and report the outcome to the Commission on 11 January 2005 at 9.00am, whereupon the Department of Community Services shall also be required to be represented." [267] 12 At the proceedings on 11 January the parties advised of a meeting which had occurred in late December. Mr Barnes referred briefly to the discussions and various correspondence which had flowed between them but, regrettably, reported that no resolution had been achieved by way of a negotiated outcome. 13 In response Mr Murphy, appearing for the respondent advised: "Commissioner, I can confirm that and indicate my client is firmly of the view for a variety of reasons, not the least the passage of time that has elapsed since the applicant was terminated, that is simply impracticable to re-establish any form of viable employer employee relationship at this point in time. My client is certainly considering a financial resolution of the matter but if the indications at this stage are that the applicant is seeking her former position back, and that is to be the ultimate outcome, then my client will have no alternative but to take it no further." 14 In response to my question concerning the position of DOCS, Mr De Courcey said: "The Department can let the parties know what the current position is with respect to that. It's very simple, that the licensee is the person who nominates the authorised supervisor. The Department considers that with respect to the normal children and childcare checks, probity, etc and will make a determination on that and issue the licence. The Department's view is that is Ms Ford indeed wished to undertake a position like that, that would be the normal procedure; the Department cannot pre-emt any view at this stage with respect to the proceedings that have come before the Commission. With respect to any other position in childcare, the procedure is there that the employer themselves would normally make that decision. It's not up to the Department if Ms Ford wished to be re-employed in a position of childcare and that didn't need that authorisation, as long as she presumably met the requirements of the particular employer. She could be employed in that area. That would be a position for that particular employer. COMMISSIONER: Well, we have a reputation at stake here. DE COURCEY: I'm aware of that, Commissioner. COMMISSIONER: It's something that caused me to make fairly detailed observations about and I rather expected that in light of the findings made in respect to DOC's pursuance of the allegations against her, that they might now be in a position to assist. DE COURCEY: Well, with respect to the order the Commission handed down with respect to reimbursement or re-employment or any compensation, the issue there is that the Department was not a party to proceedings-- COMMISSIONER: I understand that." 15 Having shortly thereafter adjourned in order to meet with the parties privately, both jointly and separately, over the next four hours the matter continued to remain unsettled and I announced that l would issue my determination in the matter today. 16 In considering the applicant's primary quest for reinstatement to her former position against the awful circumstances of events which have been visited upon her I am, in principle, sympathetic to her position. 17 After all, it was the DOC's Report, upon which Council's solely relied in its decision to dismiss. 18 As noted by Mr Murphy's response to a question from me: "We adopted the report as it is. We didn't seek to dissect it or to compartmentalise it. We adopted it as it is and did not seek to go behind its compilation. Really, if that's the position, it's going to be a difficult exercise for the commission, with respect, to do that now". 19 Since, for the main part, that Report and the attendant processes leading up to it has now been thoroughly demolished in light of the applicant's case and there is virtually nothing left about which the respondent can harbour genuine concerns or reservation should Ms Ford be returned to Council's service in one capacity or another. 20 Neither, in the absence of any new material coming to light which may be adverse to Ms Ford, should DOCS have any basis for unfavourably responding to any application for endorsement as an "authorised supervisor". 21 In terms of practicality of restoring Ms Ford to Council's services, I note that there has been very little evidence raised by Council on this regard. 22 Ms Ford has said she is capable of returning and bears no grudge against Council or its management. Management officers and, in particular, Kylie Payne simply considered, on the material provided at the time of dismissal that they had lost trust in Ms Ford's ability to care for the children. But, it seems to me with the Report upon which they totally relied, now being exposed as fatally flawed, that there should be no barrier to their trust and confidence being restored. 23 As to the effluxion of time since dismissal, a factor which may figure prominently against an applicant's interest in some cases, each case stands on its own legs. In this matter, given the emotional overtones generated throughout the early stages, I consider the effluxion of time to possibly represent a positive influence toward Ms Ford being restored to Council's service. This case should be regarded as a learning experience for all concerned and Ms Ford should not be expected to bear the entire burden for that. 24 As to whether a vacancy currently exists, in whatever capacity - director or teacher - the Commission has no evidence before it and none has been offered. But this seems not to be an issue since Mr Murphy had confirmed that he would not seek to argue that there are no available positions and that, accordingly, such remedy should be denied due to there being no vacancy. 25 In considering reinstatement of Ms Ford to her former capacity, or re-employment to a position of lesser capacity, I have decided to adopt the latter for reasons which I have already expressed in the original decision. "And, whilst I have expressed many reservations as to the accuracy and/or credibility of many of the "background" issues taken on board by DOCS I also have reservations as to Mrs Ford's successful management of the Terrigal Centre." [258] "Whilst she was not universally condemned by all staff under her supervision, the fact that more than half of her staff came forward to complain - however loose this may have been - suggests the existence of a serious problem with her style over a period of time or a conspiracy by those who moved against her." [259] "The evidence does not lead me to seriously consider the latter for I have no cause to doubt that Mrs Ford and all of those under her charge harboured a common objective - the interests of little children." [260] "The problem arises however, how the director and others went about it. Clearly there was friction, perhaps lack of direction - no doubt good days and bad, the possible intemperate and involuntary outbursts towards each other and challenging behaviour of those for whom they are responsible. Nothing new about this in any workplace or domestic environment." [261] "But the manner in which this matter gathered pace, well before DOCS' involvement, suggests a serious lack of management - for which Mrs Ford may not have been fully responsible." [262] 26 I make the following orders: O R D E R S 1 That the respondent , Gosford City Council, re-employ the applicant, Vicki Ford, in the capacity of "teacher" at the highest level of Council's grading structure applicable to its child-care centres; 2 Ms Ford shall be appointed to such a position at any its seven centres as determined by Council and for this appointment to take effect within 21 days of today's date; 3 That Ms Ford shall be reimbursed for all wages lost at the highest teachers' rate less that which she has earned, from the date of her dismissal taking effect and to the date of her new appointment. Her continuity of service for all other purposes shall be treated as unbroken. 4 That Council take all reasonable steps, as the opportunity may arise in future, to encourage and assist Ms Ford with any additional training which may be of mutual benefit to the parties; The parties are to confer on the above and, should it be necessary, leave is granted for the matter to be restored to the list. I also make the following Recommendations: 1 That Council's management acquaint itself, and all child-care centre staff, with the Ombudsman's guidelines dealing with: § "Child Protection in the Workplace" § "The Complaint Handler's Toolkit" § "Good Conduct and Administration Protection" 2 (a) That DOCS, although not a party to this matter, take all necessary steps to acquaint its own relevant staff with the appropriate principles and procedures to be adopted in investigating complaints such as those which have given rise to this matter - including the Ombudsman's material mentioned above. (b) That the Department's Head of DOCS convey a written and proper apology to Ms Ford and Council for the conduct of its officers in their investigation of this matter and the unnecessary pain and expense inflicted upon the parties, in particular Ms Ford. R J Patterson Commissioner 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.