New South Wales Independent Education Union (on behalf of Cheryl Peris) and SDN Children's Services Inc. [2004] NSWIRComm 252

Industrial Relations Commission of New South Wales

CITATION : New South Wales Independent Education Union (on behalf of Cheryl Peris) and SDN Children's Services Inc. [2004] NSWIRComm 252 APPLICANT: PARTIES : New South Wales Independent Education Union RESPONDENT: SDN Children's Services Inc FILE NUMBER: 1028 of 2004 CORAM: Sams DP Termination of employment - unfair dismissal - industrial dispute - director of child care centre - dismissal for misconduct - allegation of physical harm to a child - altercation between two young children - investigation by the employer - reference to Ombudsman - allegation not substantiated - further complaint to Department of Community Services (DoCS) - DoCS investigation - allegation then substantiated - motivation of witness - staff conflict - admissions of applicant - representation by Union - procedural fairness - relevant principles to be applied. CATCHWORDS : Held, allegation of physical harm to child not proven - applicant required to act in an emergency - evidence unclear as to whether applicant 'whacked' child on the face - applicant acknowledged inappropriate behaviour - applicant's conduct out of character - character references of other teachers - sincere contrition and regret - DoCS failure to interview the applicant or consider her responses - inappropriate reliance by employer on DoCS investigation - failure to consider mitigating factors - long and unblemished service - dismissal too harsh a penalty - motivation of unfavourable witness towards the applicant - unreliability of respondent's witness - dismissal harsh, unjust and unreasonable - substantive and procedural unfairness - no relief ordered at this stage - parties directed to confer - further proceedings. Centre Based and Mobile Child Care Services Regulation (No.2) 1996 Children and Young Persons (Care and Protection) Act 1988 LEGISLATION CITED : Commission for Children and Young People Act 1998 Industrial Relations Act 1996 Ombudsman Amendment Child Protection and Community Services Act 1998 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Antonakopolous v State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 Bigg & Anor v NSW Police Service (1998) 80 IR 434 Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 Buckman v Burdekin (1998) 85 IR 415 Burke v McGirr (1995) 87 IR 54 Busways v Johnson (1994) 55 IR 255 Byrne and Anor v Australian Airlines (1995) 61 IR 32 Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Day v Lumley Life Limited (1999) 90 IR 70 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Gregory Bowman and City of Sydney Council [2001] NSWIRComm 91 Franklins Ltd v Webb (1996) 72 IR 257 CASES CITED : Hill v Department of Juvenile Justice [2000] NSWIRComm 128 Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517 Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 Little v Commissioner of Police (No.2) (2002) 112 IR 212 North v Television Corporation Ltd (1976) 11 ALR 599 Oswald v NSW Police Service (1999) 90 IR 42 Outboard World v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Police Association of New South Wales on behalf of Adam Tregonning, and New South Wales Police Service [2000] NSWIRComm 14 Price v Box Valley Pty Ltd (1999) 90 IR 480 Shop, Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1 Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27