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 HEARING DATES: 07/05/2004; 07/06/2004; 07/07/2004 DATE OF JUDGMENT: 09/03/2004 APPLICANT: Ms C Mathews, New South Wales Independent Education Union LEGAL REPRESENTATIVES: RESPONDENT: Mr M Paul (Solicitor), Bartier Perry JUDGMENT: - 47 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 3 September 2004 Matter No IRC04/1028 New South Wales Independent Education Union (on behalf of Cheryl Peris) and SDN Children's Services Inc. Application by New South Wales Independent Education Union on behalf of its member Cheryl Peris re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 252 1 This decision concerns a reinstatement application brought by the Independent Education Union ('the Union') pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'). A member of the Union, Mrs Cheryl Peris ('the applicant') was dismissed from her position as the Director of Sydney Day Nursery, Hamilton St, Bathurst ('SDN') ('the respondent') on 20 February 2004. Her letter of dismissal, dated 18 February 2004, was expressed in the following terms: We have taken on board everything you have said in response to the recent allegation of physical harm to a child at SDN Hamilton Street, Bathurst by yourself. We have determined that your overall performance and behaviour in relation to this incident warrants termination. As at Friday, 20 February 2004 you will be given five weeks notice which will be paid in lieu. This disciplinary action will need to be reported to the Commission for Children and Young People as we are legally obliged to do so. We appreciate your long years of service with us and your dedication to SDN and the Bathurst Centre. I know you will be missed by staff, families and children. Details of your termination payments are enclosed. If you wish to discuss this with me please don't hesitate to call - speak to myself or Kathy Walker. Yours Sincerely Ginie Udy Chief Executive Officer 2 The reference to the allegation of "physical harm to a child" in the first paragraph of the letter related to an allegation that, on 21 October 2003 the applicant had 'whacked' a five year old child ('J') on the face when she was attempting to break-up a fight between J and another child ('A'). The incident occurred on a wooden play structure called the "fort", situated in the school playground. At this juncture, I note that by agreement between the parties, this decision will use the pseudonyms of J and A to protect the identity of the two children involved in the incident. 3 What occurred during this incident is a material consideration in this matter and was the subject of extensive forensic analysis in the evidence. I shall return to this evidence later. In short, however, the applicant strenuously denied that she had 'whacked' the child, but admitted that she may have had inappropriate contact with J while she was attempting to prevent further harm to A in an emergency situation. The applicant later claimed that she "tapped J's face" and said "stop it, you're frightening him (A)." In cross examination, the applicant conceded that she had "smacked a child on the face." She accepted, during the course of these proceedings, that J may have believed he had been 'whacked' and that it did not make him feel "very good." If this was how he felt, she was very sorry. She sincerely regretted the incident and promised it would never happen again. 4 The Union argued for the applicant's reinstatement to her former position. The applicant believed that her dismissal in all the circumstances, was too harsh, in that her twenty five year unblemished career in child care had been ruined. The applicant's case also involved a claim that she had been the subject of a malicious vendetta by a staff member at the Centre who had lodged a complaint to the Department of Community Services (DoCS) concerning the incident. 5 The applicant said she had experienced considerable stress in 2003 for which she had received medical treatment for depression and mood swings. The applicant said that since her dismissal she had received many letters of support from parents. 6 Proceedings in this matter originally commenced by way of compulsory conference, following a notification of an industrial dispute, pursuant to s130 of the Act, lodged by the Union on 10 February 2004 (IRC04/621). That dispute concerned the threatened dismissal of the applicant during the course of the investigation into the above allegation. The applicant's unfair dismissal application subsequently supplanted the grounds for the dispute notification. In the result, matter IRC04/621 was discontinued on 11 March 2004 at conciliation proceedings listed on that day. Conferences between the parties and the Commission failed to resolve the matter and the Commission made a finding of unsuccessful conciliation, pursuant to s87 of the Act. Directions in preparation for the arbitration were issued on 29 March and three days were set for the hearing in July 2004. 7 It is of significance that during the compulsory conferences in February, the respondent conceded that the only basis for the applicant's dismissal was the incident involving J. It is upon that limited basis that I proceed to determine this matter. EVIDENCE Applicant's evidence 8 The applicant is a qualified teacher with a Diploma of Teaching (Early Childhood). She has worked in childcare since 1978 as a teacher, lecturer and director of the SDN, Hamilton St Early Learning Centre, Bathurst ('the Centre'). The Centre is licensed to offer 46 places to children between the ages of two and five. There are two full time teachers, two casual teachers, a child care assistant and three untrained assistants. 9 The applicant said that on 23 October 2003 - two days after the incident - she was contacted by Margi Barns, a SDN consultant and was told that Ms Barns would be coming to Bathurst to see her. The applicant didn't know exactly what the matter was, but she suspected it concerned the incident with J. 10 The applicant said she felt the matter was extremely serious and believed it might relate to a claim of child abuse. However Ms Barns declined to give her details over the phone. There had also been another unrelated matter in that week involving a disgruntled parent and another teacher. 11 In later evidence, the applicant agreed she had phoned another teacher, Ms Lamers on the night of 23 October and asked her what she remembered of the incident. She told Ms Lamers she didn't wish to discuss the matter with her, she just wanted to know what she remembered of that day. She could not recall if she told Ms Lamers that someone had "betrayed her." 12 The applicant met with Ms Barns in Bathurst on 24 October and answered questions concerning the allegation. She said she felt shocked and emotional during their discussion. After the meeting, Ms Barns prepared an incident report. The applicant then sought advice from the Union. She was advised to request the allegation in writing. This was done in a letter from Ginie Udy, CEO dated 28 October. This letter and Ms Barns' incident report referred to the allegation and the child having said "Mrs Peris whacked me." Ms Udy's letter requested the applicant respond to the allegation. In the meantime it was agreed that the applicant would have no contact with the child or his age group and that DoCS would be informed. 13 The applicant responded in writing on 27 October and said in part: I did not 'whack' the child, and at no time in this incident did I act in anger or with malice. My intentions were to calm down a child who was hysterical and at the same time stop the intimidation, and I acted promptly to achieve this. 14 Ms Udy responded on 7 November and said in part: In light of your response, and information that I have received from the mother and grandmother of the child I have revised my earlier assessment of the situation. I do not believe now that there are reasonable grounds to believe the child is at risk of abuse in the centre, and I will not be making a report to DoCS. To be honest I am not 100% sure if something took place or not. You did not mention the tapping of the child's cheek in your first conversation with Margi and I still am concerned that you may have handled this child more roughly than is appropriate. We have a duty of care to all the children in our centres and as the Centre Manager you have a critical role to play in ensuring this duty of care is upheld. I am sure you are aware of this and that this experience will be enough to have put us all on alert. 15 The applicant responded on 12 November by reiterating that her conscience was clear and that she believed someone had taken the opportunity to discredit her. She said that the child was not "handled roughly." She accepted in her affidavit that she may have acted inappropriately and applied more force to J than she intended, or was aware of. However, she had never intended to mislead the employer. 16 The applicant believed that J had made the allegation because he was defensive of his own behaviour. She did not believe that she had caused a red mark on J's face and had not observed any mark when she saw him about five minutes later. 17 The applicant gave evidence that about a month after the incident, Ms Lamers' husband rang her home on three occasions on 25 November - the same day she had given Ms Lamers a warning about her performance. A meeting with Ms Lamers was scheduled for the next day. In the phone call the applicant's husband had spoken to Mr Lamers. He had said that they would be bringing up a "matter" which happened four weeks ago and his wife would not be at work the next day. The applicant understood the "matter" to mean the incident with J. 18 The applicant attended a meeting with DoCS, in the company of her Union official, on 16 January 2004. Ms Udy wrote to the applicant on 20 January, and said in part: The smack across the child's face is a serious assault and has been substantiated. 19 The applicant received a letter from DoCS on 28 January which said inter alia: ...the Department received a report on the 26th November 2003 alleging that you had "whacked" J across the face whilst trying to separate J and another child named A during a fight. It was alleged that no incident report was filed concerning the incident, and the parent was not informed until a significant period of time later. ...After enquiries the allegation of physical harm to J caused by you was substantiated by the Department. The assessment included an interview with the child and enquiries with other staff. 20 In cross examination, the applicant acknowledged that her role as Director was to protect and be responsible for her staff and the children in her care. She was aware of the recent child protection legislation and the role of the Ombudsman in child protection issues. She believed she had a responsibility to report any incident of alleged child abuse, injuries or accidents involving children. 21 The applicant was shown a document entitled the "SDN Hamilton Street Early Learning Centre Positive Guidance Policy", which she had a role in drafting. She agreed that part of the policy stated "children will never be physically punished." However, the applicant did not accept that this section referred to physical contact to restrain a child from hurting him or herself or another person. Nevertheless, she agreed that if the physical contact caused stress to the child, it might be considered abuse, even if it was unintentional. 22 The applicant was closely cross examined as to what happened on 21 October 2003. She said that within ten minutes of the incident, Ms Lamers had told her that J had said something about being "hit, smacked or something like that." She couldn't recall if Ms Lamers had said "'whacked' or if she had mentioned a red mark on his face." The applicant later agreed Ms Lamers may have mentioned a red mark on J's face. The applicant said that at the time, her priority was to protect the other child and administer first aid to him. She had asked Ms Lamers to deal with J while she carried A to the veranda. She did so because she knew J was upset and didn't want to agitate him any further. She did not ask Ms Lamers to fill out an incident report, but she had filled one out for the child A. 23 The applicant could not recall if she had asked Ms Lamers for further details of what J had said. They had discussed J's typical reaction of climbing trees and not wanting to talk if he was in trouble. At the time, she didn't believe that J's allegation was genuine, or that Ms Lamers believed it to be so. 24 In further describing the incident, the applicant accepted that she had done something to upset J, but said she would never intentionally treat a child like that. She had believed J (who was twice A's size), had caused a graze on A's chin. The applicant later learnt that A had initially hit J. The child A was hysterical and couldn't walk. Her focus was on A and she asked Ms Lamers to talk to J. She assumed A's bleeding chin had been caused by J. However, she later found out it was the result of a separate incident. 25 The applicant gave evidence that she had to act very quickly, in an emergency, to stop further injury to the children. She was concerned that A would be pushed backwards off the fort causing injury. She stepped between them and asked what happened. J kept 'growling' at A and J was not frightened by her presence. The applicant denied being angry. She said J was in a frenzy and wasn't responding as a child normally would in the presence of an adult. She gave him a quick tap on the side of his face. 26 The child J then ran away with his hands over his ears and shortly thereafter climbed a tree. The applicant said in evidence that "it broke her heart to read J's statement." She didn't believe he was distressed at the time and he wasn't crying. She believed J ran away because he knew he was in trouble and that this was consistent with his usual behaviour. She now accepted this not to be the case; rather that J was upset and he believed he had been hit hard. 27 The applicant described J as a sensitive and difficult child due to his problems at home. He was sometimes aggressive towards other children and did not like being directed by the staff. On other occasions he had climbed up a tree when he was upset. 28 The applicant said she spoke to J twice later in the afternoon. They had talked about a 'Nemo poster.' She recalled she was in the preschool room because A appeared to have a lump on his head and was asleep. The child J had come into the room and she had said something like "is everything OK now?" She denied having said "you know Mrs Peris would never hurt you, let's be friends." She said it was common practice, if a child was disciplined or distressed, or think they are in trouble, to try and restore a trusting relationship and reassure the child. She denied she had been trying to "fix things up." 29 The applicant agreed she had not immediately informed J's parents of the incident. However, this was consistent with the Centre's policy. If a pattern of inappropriate behaviour continues the parents are informed. The applicant agreed that for at least the first two days after the incident, J's mother had not been informed. She agreed it was probably not the best way to handle the situation. 30 The applicant was cross examined about her meeting with Ms Barns on 24 October. At the time she thought Ms Lamers may have reported her, but it could have been a number of other people, including J's mother or grandmother. The applicant told Ms Barns that she believed Ms Lamers had made the allegation. Ms Barns had told her not to get concerned with who made the allegation, as it could have been a number of people. Ms Barns told her "not to go there just tell the truth and the rest would follow." 31 The applicant said she was very upset at the time, and contrary to the Union's advice had met with Ms Barns. She trusted Ms Barns and had said she had nothing to hide. While there was no transcript made of the interview, the applicant agreed that Ms Barns made notes of the meeting. She agreed that Ms Barns had noted the allegation as the applicant having 'whacked' J, and she regarded the matter as serious and it might result in her losing her job. 32 The applicant said she had explained to Ms Barns that she attempted to hold J's shirt. However, she had not mentioned any other physical contact with J, as her recollection was vague and she had been very distressed and emotional at the time. She now accepted that she had unintended physical contact with J; be it a hit, smack or a 'whack'. However, she did not take it seriously at the time, nor did Ms Lamers. 33 The applicant denied that she had deliberately set out to deceive Ms Barns during the interview. Ms Barns' account was not a full record of what they had spoken about for over an hour. A full copy of the incident report was later sent to the Union. The applicant acknowledged the report was an expansion of the notes Ms Barns had made during the meeting. 34 During her evidence, the applicant conceded she should have mentioned physical contact with J to Ms Barns. However, she reiterated that she was very distressed at the time and didn't believe the matter warranted investigation. She believed she would have a fuller opportunity to give her account of what happened at a later time. 35 Further in cross examination, the applicant said she now believed she had smacked J on the face, because that is what J had believed himself. However, she believed she had to stop J's intimidation and growling. She did not believe that it was appropriate to gain a child's attention by slapping. She described the situation as very unusual. She had known J for eighteen months and he had an aggressive background. Her recollection, when she made her original statement, was that she had not applied undue pressure. Rather it had been a very quick movement of her hand. 36 The applicant referred to significant staff conflict which existed during 2003. As a result, a seminar on conflict resolution and various meetings were held with Ms Barns during 2003. 37 The applicant was asked about the effect of the staff conflict on her judgement. She said that on the day in question she should have been inside with her own group. However, Ms Lamers believed other staff had been letting her down. The applicant had promised to support Ms Lamers and was in the playground to assist her. 38 The applicant said she gave a warning to Ms Lamers on 25 November about her performance. Later that day, Mr Lamers had been at the Centre and the applicant had to walk around his car to get to her own car. She had a conversation with Mr Lamers and he appeared angry. He later rang her home in a threatening manner. She now understood that Mr Lamers had phoned members of the Parents' Committee and told them she was a child abuser and should be "got rid of." 39 The next day Ms Lamers was not at work. On that day, the applicant received a very distressing phone call from the Vice President of the Parents' Committee, informing her that she and two other Committee members had been told that she was a child abuser, who should be "got rid of." The applicant said that the Lamers family had been bragging around town that they were going to get rid of her. She had received numerous anonymous phone calls and a parent had told her that Ms Lamers had said she had "dobbed" the applicant in to DoCS. 40 The applicant gave evidence that she had a discussion with Ms Udy on 19 December 2003 concerning further allegations against her and another staff member. This was the last day of term. A meeting was held on 16 January 2004 involving her Union representative, Ms Heron and two DoCS officers, Rosemary Hailstone and Bronwen Rotherham. At this meeting DoCS confirmed that the incident had been substantiated. 41 The applicant received a letter two weeks later (28 January) from DoCS. This letter said in part: As discussed at the meeting the Department received a report on the 26th November 2003 alleging that you had "whacked" J across the face whilst trying to separate J and another child named A during a fight. It was alleged that no incident report was filed concerning the incident, and the parent was not informed until a significant period of time later. 42 The applicant reiterated that it was not until she read J's record of interview that she accepted that the incident had occurred in the way that he believed. She had not believed, at the time, that J or Ms Lamers believed it was a genuine complaint. She thought J had sought to cover up the hurt he had done to A. She described the events later that afternoon as giving no indication that there had been anything like child abuse. The applicant said J came to her room about 3.00pm and they had a "little chat." She had not suspected anything was wrong. She had not seen a mark on his face at the time when he had walked across the lawn about five feet from where she was standing on the veranda. 43 A meeting about the matter was held in Sydney with the Union on 17 February 2004. The applicant agreed she had hoped Ms Udy would reconsider her likely decision to dismiss her. The applicant was referred to her supplementary statement in which she had agreed she had not acknowledged details of the incident to Ms Udy in her letters of 29 October or 12 November. She had acknowledged however, at the meeting on 17 February, that she had acted inappropriately. She said she would be prepared to accept any disciplinary measures and assured the respondent the behaviour would never be repeated. The applicant agreed she had first raised the issue of losing her job on 24 October with Ms Barns. However, she believed the matter was "history" when she received Ms Udy's letter of 7 November. 44 The applicant explained that her reference in her statement of receiving no assistance from SDN was after the DoCS meeting when Ms Udy said she had no choice but to dismiss her. The applicant said she had not asked for support after 7 November, because she believed the matter was closed. 45 In re examination the applicant said this: I believe that the child genuinely was distressed and that I probably acted more harshly than I believed initially, given that that is, was his own words, it was genuinely true. As soon as I read those words, because I had known this child for such a long time, I really believed that he believed that the smack was hard and when he said he felt very bad, I felt really bad that I had done that to him because he had already had enough to deal with. 46 The applicant believed that in the meetings of 16 January and 17 February 2004, she had taken responsibility for her actions, understood what had happened and given assurances it would never happen again. She emphasised that she had been prepared to do whatever was necessary to save her job. However, less than 24 hours later, Ms Udy had dismissed her. 47 Two other teachers at the Centre provided witness statements - Ms Joanna Hall and Ms Robin Hurst. Neither teacher was required for cross examination. 48 Ms Hall holds a Bachelor of Science and Bachelor of Teaching (Early Childhood) and works as a casual relief teacher at the Centre. 49 Between October and November 2003, Ms Hall replaced Ms Hurst for three days a week while Ms Hurst was on annual leave. On the day of the incident, Ms Hall was working in the same room as Ms Lamers. She said that after lunch her group went outside, and she had cleaned up and prepared the room for rest time at 1.30pm. The children started to come in around 1.40pm. She stayed with the children while Ms Lamers was having lunch. 50 Ms Hall gave evidence that J did not seem distressed, nor did she observe any marks on his face or body when he came back to the room. Ms Lamers had not mentioned anything to her about the incident before, or after the children's rest time. 51 Ms Hall claimed that it was the policy of the Centre to record any major injuries that a child receives at the Centre and to fill out an incident report. She said that staff also report to each other, on an informal basis, about conflict or incidents between children, so that the children can be observed and monitored and parents informed. Ms Hall said that, at no time, was any communication made to her concerning the incident involving J. 52 Ms Hall deposed that she was familiar with J's behaviour. He would often become defensive when spoken to about inappropriate behaviour. He would shut people out by avoiding eye contact, putting his hands over his ears, turning away and not responding when spoken to. 53 Ms Hall said she had never witnessed any inappropriate behaviour by the applicant. She believed she was a caring, friendly person who always placed the needs of the children first. 54 Ms Hall deposed that she was aware of the requirements of child protection legislation and believed that the policies of the Centre were followed. It was her professional opinion that the Centre provided a safe, warm and secure environment for children. 55 Ms Robin Hurst had been an infants/primary teacher from 1962 to 1965, then a teacher at the Centre from 1975. She holds a Bachelor of Early Childhood Education and Diplomas in Early Childhood Teaching and Infants/Primary Teaching. She is also a validator for the National Child Care Accreditation Council. 56 As a validator, Ms Hurst assesses the service delivery of child care centres throughout Australia. She said there are over 575 indicators by which services are measured and she has performed 160 validation visits. While she could not validate the Centre where she worked, Ms Hurst deposed that the Centre was last accredited in October 2003 for three years with all indicators marked as high. 57 While Ms Hurst was on annual leave at the time of the incident on 21 October 2003, J was in her classroom during 2003. She would often observe him to be aggressive with violent tendencies towards other children and adults and, on occasions, he had to be physically restrained from hurting other children when distraction or redirection strategies failed. 58 Ms Hurst believed that J was resistant to staff attempts to discuss and resolve his feelings after he had been in conflict with other children. She had observed him run away, cover his ears or climb trees in these situations. His behaviour had been the subject of a number of informal complaints by parents of other children attending the Centre. 59 Ms Hurst and other staff were aware that J's parents were going through a separation and this was a cause of stress to his mother, himself and his younger brother. Staff had understood his problems when attempting to manage his behaviour. 60 Ms Hurst believed the relationship between the applicant and J, both before and after 21 October 2003, was positive and affectionate. She had never observed the applicant lose control, appear exasperated or behave inappropriately towards staff or children. Ms Hurst had worked with the applicant for over 23 years and had acted as relieving Director. She believed the applicant to be a caring person with a pleasant disposition. She had never seen the applicant touch a child inappropriately or ever raise her voice to a child. Had she done so she would have raised the matter and, if necessary, reported it to the appropriate authorities. 61 Ms Hurst deposed that the Centre's policy was to avoid physical contact with a child, unless it was necessary to restrain a child to prevent injury or to gain a child's attention. Respondent's Evidence 62 The respondent called four witnesses: Allana Lamers - Childcare Worker Bronwen Rotherham - Child Protection Caseworker Margi Barns - Early Childhood Consultant Virginia ('Ginie') Udy - Chief Executive Officer 63 Ms Allana Lamers commenced work as a childcare worker at SDN Bathurst, in August 2001. She had not worked in childcare before. 64 Ms Lamers gave detailed evidence of the incident on 21 October. Ms Lamers was on duty in the playground when she saw the applicant escorting A to the veranda. A was crying. At this time J was on another playground structure called a train. The applicant had asked Ms Lamers to find out from J what had happened. Ms Lamers said that when she approached J he was crying and held his right hand to the left side of his face. In re examination she described his crying as him "being upset." 65 Ms Lamers asked J what had happened. He had replied, "Mrs Peris whacked me on the face." J repeated the comment. When pressed, J acknowledged hitting A, but said A had hurt him first because A didn't want him to talk to another child. Ms Lamers said she asked J to come and speak to the applicant, but he said he didn't want to talk to her. Ms Lamers went back to the applicant and told her that J had said she had 'whacked' him on the face. She had not used the words 'smacked' or 'hit'. Ms Lamers said the applicant did not respond. 66 Ms Lamers said she went back to the train, but J would not come out. He continued to hold his face. Ms Lamers said that she went back to the applicant. They had spoken about J's abusive home life. 67 Ms Lamers said that soon after, J approached the veranda and when the applicant walked towards him, he covered his ears and said "I am not listening." She said the applicant said something like "if you are going to be like that I won't talk to you." 68 Ms Lamers said J then ran away and climbed up a tree. She went to coax him down. When he came down the tree, she noticed a red mark on his left cheek and could see he had been slapped. She agreed in cross examination that she had not seen the red mark later in the day. She agreed it was possible Ms Hall did not see a red mark when J went back to the classroom about 15 minutes later. J had said he didn't want to go near the applicant because "she whacked me across the face." Ms Lamers offered to go with him, but he refused. 69 Ms Lamers deposed that J was a "tough" boy, but at the time of the incident, he looked "absolutely petrified." He appeared to be "scared to death" of the applicant. Ms Lamers said he was crying all the time and she had never observed him cry before. In cross examination, she agreed she had not mentioned to the applicant he had been crying in the playground or when he was up the tree. 70 Ms Lamers said she went and told the applicant, J wouldn't come over. The applicant said she would talk to him later. When it was time to go back to the classroom, J had calmed down. 71 Ms Lamers claimed that she didn't know quite what to do about the incident. She didn't fill in an incident report as the applicant would have to sign it. She said she didn't know how she would fill out an incident report about the applicant hitting J. However, Ms Lamers did write an incident report on 26 October 2003 after speaking to Ms Barns. 72 Ms Lamers deposed that later in the afternoon the applicant came into the preschool room and initiated a conversation with J. J had not responded in his normal way. This was not the applicant's normal room, but she did make visits (usually daily) to speak to the teachers or children. The applicant said, "you know Mrs Peris would never hurt you. Let's be friends." J did not reply. Ms Lamers agreed in cross examination that this conversation was not mentioned to Ms Barns on 23 October. 73 Ms Lamers deposed that the applicant did not tell J's mother about the incident at the end of the day. The next afternoon Ms Lamers called SDN Head Office and spoke to someone (Ms Linda Mitchell) about what had happened. Ms Mitchell asked if there was any physical evidence on the child and Ms Lamers said he was holding his face. The next day Ms Lamers spoke to Ms Barns. About an hour later the applicant phoned and left a message on her answering machine. Ms Lamers called back and the applicant asked her to tell her exactly what she knew about what happened to J. She had replied "only what I told you, Cheryl." The applicant then said that "Margi (Ms Barns) is coming to Bathurst tomorrow, somebody has betrayed me." 74 Ms Lamers deposed that, at no time since the incident had she spoken to J, or he to her. 75 In cross examination, Ms Lamers was asked about her complaint to DoCS in which she described J as "screaming" after the incident. She later attended an interview with DoCS and denied exaggerating her earlier version of the incident given to SDN. She agreed, in the next question, that she gave a stronger and serious statement to DoCS when she had said she had noticed a "long red mark which covered his left cheek. I know that by his fear and reactions 150% that it happened." She confirmed that after she had been advised by SDN that the complaint against the applicant had not been substantiated, she decided to make a personal complaint to DoCS. 76 In cross examination, Ms Lamers agreed with Ms Hall's comments about J's behaviour. She also agreed with Ms Hurst that J was aggressive and had violent tendencies. She said he was too big and strong to be physically restrained. She also agreed that he did not trust other people, although she had earned his trust over the years. 77 Ms Lamers agreed that during 2003 there was a significant degree of staff conflict which included conflict between herself and other staff. Ms Lamers accepted that a meeting to discuss a grievance had been arranged for 26 November, but she had not attended due to her own emotional upset. Ms Lamers wrote to Ms Udy on 26 November in which she said: To Ginie, After my conversation today with Margi Barns, once again over incidents with Cheryl Peris, I feel obliged to inform you that I will be seeing my doctor today with the intention of having some 'stress related' time off due to the continuos (sic) verbal abuse, harassment, intimidation and stand-over-bullying tactics from Cheryl Peris. As you are aware, I filed a complaint recently about an alleged assault of a child by Cheryl. Although my confidentiality was assured, since the report was made, Cheryl has continuously treated me in a way that reflects her knowing I was the one who reported the incident. I have now reached the point where I feel my health and private home life have been affected because of the treatment I am receiving off (sic) Cheryl. After weeks of sole (sic) searching, I have now come to the decision to inform DOCS of the incident regarding the alleged child abuse even though you investigated it and I received a reply from this investigation. I feel it is my duty as a carer, not to mention my obligation under the Child Protection Act, to inform DOCS of this incident. I couldn't live with myself if this happened again to another child. I have also taken the liberty to inform Tanya Peachy who is the president of the P & C Association at Hamilton Street of the alleged incident and of my reporting the incident. I feel the P & C needed to know this because as a parent I would want to know, and I also believe that it did occur, due to the marks on the child's face. I am solely there to offer the best possible environment for the children, something that I do well, however how can I do this with the ongoing harassment and abuse I am receiving? Cheryl has abused me on many occasions in front of other staff members and the children. The persistent abuse has been happening over the past two years and I have kept documentation of everything for the two years. Every time Cheryl has abused, harassed and intimidated me I have recorded it. I also believe that Cheryl is in breach of OH & S policy, that is, by not providing a safe and friendly working environment not only for myself but for other staff members who unfortunately are not brave enough to stand up for themselves and speak out. I also feel it is only fair to inform you that I am in the process of pursuing charges to be put up against Cheryl for intimidation, victimisation, harassment and stand-over-bullying tactics in the workplace. Although this was a last resort, I would have preferred an alternative solution to this ongoing problem however, I am at the point where I can not take this anymore. As you may be aware, another staff member, Bodie Wright, left SDN for exactly the same reason. How many more staff are you willing to loose (sic) for the sake of 1 or 2 staff members who are hell bent on making life miserable there? I understand that when you and other SDN staff come to the centre, things look great. But believe me; this is far from the truth, as my documentation will prove. It is quite easy to put on an act when you know someone is coming to see your centre. I am sorry that it has come to this. I have the greatest confidence that you will do what is necessary and I will be forwarding this letter to the union and their solicitors and also the P & C association. 78 Ms Lamers denied that her poor relationship with the applicant was related to her decision to inform DoCS of the incident involving J. She said it was a coincidence that she mentioned both matters in the letter. Ms Lamers said she had disagreed with SDN's decision not to notify DoCS and believed she had a mandatory responsibility to do so. She had learnt from a staff meeting that one need not go through the Director to report to DoCS. Ms Barns had told her that it was a matter for DoCS. In cross examination, she said she bore no malice towards the applicant. 79 Ms Lamers said she was told about SDN's decision (not to inform DoCS), two weeks before she wrote the grievance letter. During that time she had made a number of calls to Ms Barns to ask about the progress of the complaint to DoCS. 80 Ms Lamers believed that J and all the children at the Centre were at risk as at 26 November - five weeks after the incident with J. She believed the applicant had ill treated J. Ms Lamers was shown the SDN Children's Services Young Child Protection Policies and Procedures and what constituted a requirement to notify DoCS. Ms Lamers agreed that neither J, nor any other children at the Centre were at risk of the matters referred to in the policy. She was not aware, at the time, that there was a requirement for a current concern to be notified to DoCS. 81 Ms Lamers agreed her husband had phoned the President of the P & C. He had also phoned the applicant on 25 November to say his wife would not be attending work on the next day when the grievance meeting was scheduled. She did not hear her husband mention the incident involving J. Ms Lamers said she was not aware of other anonymous phone calls made to the Centre, the applicant and P & C Committee members. 82 Finally, Ms Lamers claimed she had not been warned herself about any inappropriate physical contact with children. 83 Ms Bronwen Rotherham is a Child Protection Case Worker for DoCS. She is a trained nurse and has worked at the Department for four years. As part of her work, Ms Rotherham has interviewed many children and young people as part of the process of completing a risk of harm assessment. Ms Rotherham was the caseworker responsible for the investigation into the allegation against the applicant. Ms Rotherham described the process of a risk of harm assessment in this particular instance. 84 On 3 December 2003, a Planning Meeting was held with other officers of DoCS to ensure a planned approach to the assessment of the physical risk of harm to J. On 4 December, Ms Rotherham interviewed Ms Lamers in the company of another caseworker. This interview was conducted in accordance with DoCS' policies. Ms Rotherham was told by Ms Lamers that she had concerns with the conduct of the applicant and that J had made a clear disclosure that the applicant had 'whacked' him on the face. Ms Lamers had said that J's distress was out of character for him as he was an extremely robust child. Ms Lamers had also told Ms Rotherham that other staff had witnessed the applicant hitting other children at the Centre. 85 On 9 December, Ms Rotherham spoke by phone to J's birth parents, who were separated. She arranged to meet with J's mother the next day. However, J's mother rang on the day and sounded frantic and stressed. She said J had been through enough already, and she didn't want him interviewed. Ms Rotherham inquired further and J's mother said: He's just been through enough. His father kidnapped them from me earlier this year, and now he won't talk to adults. He's a screwed up mess. 86 J's mother later agreed to allow Ms Rotherham to interview her son on 11 December in a local park. The interview lasted approximately fifteen to twenty minutes. While talking to J, Ms Rotherham had been pushing him slowly on a swing. 87 A record of interview was typed up later in consultation with another DoCS officer who had been present (Patricia Preston). The interview was recorded and signed only by Ms Rotherham. It recorded as follows: I said, "Which class are you in?" J said, "The big class." I said. "Oh. What's a (sic) you're teachers name?" J said, "Mrs Hurst." I said, "Tell me about her." J said, "She's nice. She does painting with us." I said, "What's the big boss teachers name?" J said, "Mrs Peris." I said, "Tell me about Mrs Peris." J said, "Well, one day I was fighting with this other kid. I was trying to scare him so I took his hat. Mrs Peris came up behind me and whacked me across the face." I said, "Then what happened?" J said, "I went up a tree." I said, "Was it a hard hit or a soft hit, or something else?" J said, "It was hard." I said, "Can you show me where she hit you?" J pointed to his left cheek I said, "Did you have a mark?" J put his head down and was thoughtful he then looked up and J said, "Yes." I said, "How did that make you feel?" J said, "Not very good." I said, "Has anything like this ever happened before?" J said, "No. Only once." I said, "Do you mean it's happened before, or only this time?" J said, "Only once." I said, "Has anything like this every (sic) happened to any other kids?" J said, "No." 88 In cross examination, Ms Rotherham agreed that the question, "did you have a mark?" was a leading question. However, she said the child showed all the signs of having given reliable information and what he said was consistent with what Ms Lamers had told her. Ms Rotherham did not accept that J had been "coached" as to his responses. J had made reference in the interview to a hat, but this had not been mentioned in other documents or reports of the incident. 89 Ms Rotherham did not agree that asking if the hit was soft or hard was a leading question. It was her professional opinion that J had made a clear and concise disclosure of physical harm caused by the applicant and that he was able to distinguish between truth and lies. She believed him when he said, "Mrs Peris whacked me across the face." She had no doubts, at all, that the applicant had ill treated J. 90 On 16 January 2004 a meeting was held with the applicant and her Union representative, Ms Heron together with Ms Udy, Ms Rotherham and Ms Hailstone. Ms Rotherham said that initially the applicant denied slapping the child, but later in the interview, said she may have "tapped the child." 91 Ms Rotherham said that as a result of this meeting, the interviews with J, Ms Lamers and other staff as well as the applicant's responses, DoCS concluded that the complaint had been substantiated. The applicant was advised on 28 January and the respondent was advised on 2 February. 92 Ms Rotherham was closely questioned on the provisions of the Children and Young Persons (Care and Protection) Act 1988 and the various policies and procedures of DoCS. Particular reference was made to the definition of "physical abuse." Ms Rotherham believed that whacking a child across the face was consistent with the definition of physical abuse. 93 Ms Rotherham agreed that s23 of the Act defines "a child or young person is at "risk of harm" if current concerns exist for the safety, welfare or well being of the child or young person..." Ms Rotherham elaborated by deposing that in order to determine whether there is risk of harm, DoCS needed to establish what had happened and whether the incident placed other children at risk of harm, even if the child who had been at risk is no longer at risk. 94 Ms Rotherham was questioned further on the role of the Ombudsman in child protection issues. Ms Rotherham agreed that there was a distinction cited by the Ombudsman between a DoCS investigation and an agency investigation. She also agreed that DoCS make a broad assessment about whether a child is at risk, whereas the employer or agency is required to make a determination as to whether a particular allegation has been sustained. 95 However, Ms Rotherham deposed that DoCS undertakes a similar investigation as the employer in an attempt to establish what happened in a particular incident. Ms Rotherham said the planning process involved a consideration of whether the initial report to DoCS may have been malicious. Initially, this had been a general concern, but later in the interviews with staff, there emerged serious concerns in regard to staff conflict at the Centre. Ms Rotherham said she had always kept this in mind. 96 Ms Rotherham was asked to compare Ms Lamers original report to SDN to what she had told her at the interview. Ms Rotherham hadn't been aware that Ms Lamers was actually pursuing charges against the applicant for intimidation, bullying and harassment. Ms Rotherham did not accept that the report to her was more emotional than the original report to SDN. She described the report as more detailed, and probably better articulated in person, rather than in writing. Ms Rotherham conceded that one possibility was that Ms Lamers "got carried away" with the matter. Nevertheless, she had tested Ms Lamers' information against the interview with the child and found it to be consistent. 97 Ms Rotherham was asked specifically about how long J was alleged to have been crying and said she wasn't surprised that J had become calm and settled soon after the incident. Ms Rotherham had no knowledge of alleged inappropriate contact by Ms Lamers with other children. 98 Ms Rotherham agreed that at the time she met with Ms Udy on 19 December and had recorded that the allegation had been substantiated, DoCS had not interviewed the applicant. In re examination, Ms Rotherham said she would have reassessed her view of the applicant after the interview with her, if there hadn't been so many inconsistencies in what she had said. In any event, the applicant formally responded in writing to DoCS on 28 January 2004. 99 At a meeting with Ms Udy and Ms Rotherham, Ms Udy had said she would ask the applicant to resign and would be taking disciplinary action against another employee. Ms Rotherham also regarded these other allegations as serious. 100 Ms Rotherham deposed that DoCS had substantiated actual harm to J, but he was not at any future harm because he had left the Centre. However, her concerns also went to ongoing risk for other children at the Centre. Ms Rotherham agreed she had information from J's grandmother that the incident was unlikely to have occurred. 101 Ms Margi Barns is one of three Childhood Consultants employed by the respondent. Her role is to assist individual child centres to best provide services for the children. 102 Ms Barns was asked by Ms Udy to investigate the incident. Ms Barns spoke by phone to Ms Lamers on 23 October and wrote an incident report shortly after the phone call. Ms Barns went to Bathurst and interviewed the applicant on 24 October. She made notes and gave a copy to the applicant. She couldn't recall if the applicant was offered a witness to be present. Ms Barns agreed that she didn't record what questions were asked. Rather, she simply wanted to ask about the applicant's account of the incident. 103 The significant aspect of Ms Barns' evidence was that during the interview the applicant had not mentioned tapping J's cheek. Instead, the applicant described reaching forward and grasping his shirt with her thumb and forefinger. 104 Ms Barns said her incident report accurately recorded the issues raised and the applicant's responses. Ms Barns could not recall the applicant referring to the stress she was under as a result of staff conflict. That matter had been discussed at a different meeting. 105 Ms Barns said the applicant was upset during the interview about who had reported the matter. She had mentioned Ms Lamers by name. In cross examination, Ms Barns acknowledged there was ongoing staff conflict at the Centre and many of the staff did not trust Ms Lamers. Ms Barns had attended a meeting on 28 November, where these concerns had been expressed. However, she had not seen Ms Lamers' letter of complaint about the applicant. 106 In cross examination, Ms Barns said she had known the applicant for a long time and felt very sad for her. She had not been aware of any other child protection complaints against the applicant. However, Ms Barns said she supported the respondent's decision to dismiss the applicant. 107 Ms Virginia Udy gave affidavit and oral evidence. Much of the factual material contained in Ms Udy's affidavit has already been referred to and I do not intend to replicate it. 108 Ms Udy holds a Bachelor of Education in Early Childhood and a Masters of Arts (Honours). As the CEO of SDN she is the licensee under the Centre Based and Mobile Child Care Services Regulation (No.2) 1996 and has the authority to terminate the employment of staff employed by SDN. SDN operates twenty-four child care centres throughout New South Wales. Some of the Centres have their own particular policies which are reviewed by SDN Head Office. Ms Udy said the Bathurst policy, known as the Positive Guidance Policy, was last updated in June 2003. The applicant had responsibility for its review, updating and implementation. 109 In cross examination Ms Udy was taken to the SDN Child Protection Policy and the requirement that any interview be fully documented (para 8). Ms Udy was satisfied Ms Barns had satisfactorily complied with the policy. Ms Udy agreed that she would have been better able to judge the applicant's frankness if a full transcript had been made. This process had also not been strictly applied in relation to the interview with Ms Lamers. Ms Udy believed that a phone conversation between Ms Barns and Ms Lamers constituted an interview. However, Ms Udy was satisfied that both interviews had been conducted appropriately. Nevertheless, she acknowledged more staff training might be required in this regard. 110 Ms Udy first became aware of the incident on the next day and immediately set in train the investigation of the incident by Ms Barns. At about this time, Ms Udy began making notes about the incident and the various steps taken to investigate the matter. She met with Ms Barns on a number of occasions to discuss progress. Ms Udy said the investigation plan was designed to find out what had happened, even if the policy did not expressly say so. 111 Ms Udy agreed that the SDN Plan did not include a provision that a decision was required in respect to disciplinary action. Ms Udy explained that this would have depended on the outcome of the investigation. 112 On 27 October, Ms Udy said she phoned the applicant and told her that she thought the incident had happened and that she was obliged to report the matter to DoCS and the Ombudsman. In oral evidence, Ms Udy said that for any staff member to hit a child on the face would be child abuse. 113 Between 29 October and 7 November, Ms Udy considered what further action to take in light of the applicant's response and the responses of J's mother and grandmother; both of whom appeared to minimise the incident. It was Ms Udy's experience that most parents want to find out what happened, even if their child had not mentioned anything. 114 Around this time, Ms Udy believed there was not enough evidence to finally conclude that the applicant had 'whacked' J. She decided that a notification to DoCS was not warranted after weighing up a number of matters, including the further risk of harm. However, the Ombudsman was notified on 7 November. 115 In this respect, Ms Udy agreed that the allegation had not been substantiated. Ms Udy also advised parents and staff that the allegation had not been substantiated. However, a decision had been made to restrict contact between the applicant with the younger children and increase supervision of her. 116 Had there been enough evidence at this time, Ms Udy said she would have considered dismissing the applicant. As Director of the Centre, the applicant was in a special position, and more than anyone else, would have known what was expected. Ms Udy said she was also concerned with the applicant's failure to understand the seriousness of the issue. 117 In addition, Ms Udy did not believe that the applicant had been completely open and honest about the incident. At first she had not mentioned "tapping" J's face. In her letter of 7 November, Ms Udy was still unsure of what had happened but, given that the applicant was to have no contact with J, she believed the risk of harm had been minimised. Ms Udy expressed concern with the applicant's reaction. The applicant did not directly acknowledge the incident and said no investigation was required. She had also attacked Ms Lamers' motives and claimed she had been stressed as an indirect excuse for what had happened. 118 On 19 December, Ms Udy received the DoCS report. As this was the last day of term, she did not consider it necessary to stand the applicant down. However, she was considering dismissing her. However, a meeting was arranged for 16 January 2004. During this meeting, Ms Udy was concerned with the applicant's comment that "there's a smack and there's a smack." Although this was about another incident, Ms Udy believed that the applicant did not appreciate that smacking a child was never acceptable. Ms Udy had noted a comment by the applicant at this meeting, "I'm putting this in context, but that doesn't make it right." Ms Udy agreed that this comment did not appear in the minutes of the meeting. Ms Udy further agreed that this meeting did not strictly comply with SDN's policy, in that interviews should be dated and signed. 119 In her letter of 20 January 2004, Ms Udy raised the possibility of dismissal once the applicant had responded to the DoCS written report. That report contained the transcript of the interview with J and the finding that the allegation had been substantiated. Ms Udy did not consider there were any inconsistencies in what J had said and what other people had observed. Ms Udy acknowledged that she relied on the DoCS findings to proceed to termination. 120 Ms Udy conceded that up to 28 January 2004, DoCS had not received any of the written responses the applicant had provided in her defence to SDN. 121 On 6 February, Ms Udy wrote to the applicant and advised her that her actions warranted dismissal and offered her an opportunity to respond. Meetings involving the Union were subsequently arranged. 122 Ms Udy concluded that the incident had occurred after receiving the DoCS report and said in her affidavit at para 37: 37.1 From the beginning the allegation has always been of "whacking" J's face, a term which Allana Lamers says J used at the time and the term which J used some weeks later when interviewed, 37.2 Allana Lamas (sic) saw a red mark on J's face, 37.3 J kept away from Cheryl and would not come down from the tree, 37.4 Cheryl seemed to ignore Allana's report of J saying he had been hit, 37.5 Cheryl never gave a clear explanation of what happened, 37.6 Cheryl's demonstration to Margi Barns of what happened was inconsistent with her later statement of "tapping" his face, 37.7 Cheryl's responses were more to do with explaining her motives and attitude rather than dealing with what happened, 37.8 Cheryl's responses implied some physical action by her but she was not clear about what she did, 37.9 J's apparent failure to tell his parents might be for some reason other than that the incident did not happen, 37.10 J gave a consistent story to DoCS. 123 Ms Udy deposed that she was obliged to notify the Commission for Children and Young People and the Ombudsman of the decision to dismiss the applicant. She said a transfer or demotion were not possible. However, Ms Udy claimed at para 42 of her affidavit that she also took the following factors into account: 42.1 I was aware that Cheryl had long service with SDN and was otherwise performing her duties as Director, 42.2 Cheryl was clearly upset at what had occurred, 42.3 There had been tensions at the Centre and staff were not always working harmoniously with each other, 42.4 An adverse decision would make it hard if not impossible for her to secure employment in the child care industry again, and 42.5 Cheryl might find it difficult to secure other employment in the Bathurst region. 43.1 Cheryl was the Director of the Centre and was the person in charge who must lead by example. There was nobody more senior on site to ensure child protection policies were maintained. 43.2 Her lengthy experience in child care and as a Director meant that she ought to have been aware of how to respond in such circumstances, 43.3 As Director she should have made a report of the incident especially after Allana told her of J's statement. 43.4 Had Cheryl been under some stress at work she should have allowed that stress to affect her behaviour towards the child and she could have sought help if she was having difficulty. 43.5 Cheryl never said that she had any difficulties or needed help in dealing with children at the Centre. 43.6 The Centre had been given support to deal with any staffing difficulties at the Centre. 43.7 Cheryl denied the incident which sat oddly with her mention of stress. 43.8 Cheryl made no statement about how her performance would improve or why such an event would not happen again, and without Cheryl taking responsibility for what happened I doubted she would have a change of attitude. 43.9 Her comment about not using undue pressure and her reference to different types of smacking implied that she had not accepted the policy and philosophy of SDN against physical punishment. 43.10 Hitting a child on the face is a serious matter and completely contrary to the fundamental principles of child care at SDN. 43.11 Cheryl Peris was in charge of the Centre and J must have felt he had nobody to complain to about being hit. 43.12 These types of incidents are considered by the community to be serious and there is legislation that obliges me to report the initial allegation to the ombudsman and then to demonstrate how the incident is investigated and resolved. Any concerns I have about risk of harm to a child are to be reported to DoCS and any outcome or disciplinary action is to be reported to CCYP to be used for pre-employment checks for those working with children. 43.13 I could not be confident that Cheryl understood and accepted her behaviour and I was therefore worried that she may behave in the same way again. 43.14 To allow Cheryl to remain in her position would have sent the wrong message to staff about the seriousness of hitting a child. 124 Ms Udy believed that had the applicant acknowledged the incident at the time and sought assistance, she may not have been dismissed. Ms Udy maintained that nothing she had heard in these proceedings would have changed her decision to dismiss the applicant. Ms Udy was also concerned that had the applicant not been dismissed, other matters which had been raised in December 2003, would require investigation and may have resulted in her dismissal. 125 In cross examination, Ms Udy agreed that around 28 November she met with the Centre staff. She accepted that the staff had perceived Ms Lamers to be destructive and destabilising. She had been concerned about the staff conflict and its effect on the business, particularly with all the rumours flying around town and anonymous phone calls to the Centre. Nevertheless, Ms Udy had told the meeting that the matter concerning J had been concluded. 126 In late November, Ms Udy was concerned that some people might equate physical abuse with sexual abuse and regard the matter much more seriously than it was. In her letter to staff and parents she had not used the words 'child abuse' for this reason, but described the incident as a discipline issue or physical contact. 127 However, by 19 December the matter had resurfaced after new information was received about other matters. Ms Udy couldn't recall if the incident involving J had been mentioned again to the applicant. On this day, she attended a meeting with DoCS and the minutes of this meeting record that "Ms Udy stated that she will be asking Ms Peris for her resignation." In cross examination, Ms Udy explained that she hadn't made a definite decision at that stage about the applicant's future. 128 Ms Udy agreed that the other matters raised by DoCS had a strong impact upon her decision to dismiss the applicant. However, she believed that the substantiated physical assault on J, and the applicant's reaction to it, were sufficient grounds for dismissal. 129 Ms Udy was asked about a meeting in the Union's office on 17 February 2004. She agreed the applicant acknowledged what she had done was inappropriate. However, Ms Udy said it still wasn't clear what the applicant regarded as the inappropriate conduct. Ms Udy noted that it wasn't even made clear during these proceedings what the applicant regarded as inappropriate conduct. 130 Ms Udy was asked about another allegation in respect to another employee, Ms Humphries. Ms Udy believed that this incident involved Ms Humphries' own child. She said both DoCS and SDN had been satisfied with Ms Humphries explanations, and no disciplinary action had been taken against her. SUBMISSIONS 131 Both parties agreed that the Commission should, at this stage, only determine whether the dismissal of the applicant was harsh, unreasonable or unjust pursuant to Pt 6 ch 2 of the Act. Mr Paul, in particular, submitted that the respondent would wish to be heard as to any relief to be awarded should the Commission find in favour of the applicant. Ms Matthews did not oppose this course. For the applicant 132 Ms Matthews submitted that the applicant's dismissal was both substantively and procedurally unfair. In dealing with procedural issues, Ms Matthews relied on the principles discussed in Antonakopolous v State Bank of New South Wales (1999) 91 IR 385. She submitted that the respondent had failed to follow their own procedures in properly and fully recording the interviews with both the applicant and Ms Lamers. Indeed, Ms Lamers' first interview with Ms Barns was over the phone. 133 More importantly, Ms Matthews put that Ms Udy had made up her mind in December 2003 to dismiss the applicant, after receiving a letter from DoCS which was said to have substantiated the allegation against her. Ms Udy panicked and at first wanted to force the applicant's resignation. Ms Matthews submitted that nothing the applicant, or the Union put, would have swayed her intention to dismiss the applicant. Moreover, Ms Udy didn't have access to DoCS records, but simply wanted a letter from DoCS to justify her decision to dismiss the applicant. 134 Ms Matthews was particularly critical of the investigation conducted by DoCS. The DoCS investigation determined on 19 December 2003 that the allegation had been substantiated, yet DoCS hadn't even interviewed the applicant, nor was it in possession of any of the applicant's written responses to the employer. After 19 December, neither the respondent or DoCS were investigating anything - let alone considering the applicant's responses. 135 Ms Matthews submitted that Ms Udy's later conduct contrasted with the respondent's own findings, which had concluded in November, that the incident was not a serious matter, but one of discipline. Ms Udy even advised the applicant, staff and parents that the allegation had not been substantiated and no further action was necessary. Ms Matthews said it was very hard to explain the big shift in Ms Udy's position from November 2003 to February 2004. 136 So what changed Ms Udy's approach, Ms Matthews asked? Ms Udy knew that Ms Lamers was hostile towards the applicant. Ms Udy believed that the applicant was being less than honest and was unco-operative. Ms Matthews said, however this was perfectly understandable because the applicant believed the matter had been resolved. The applicant was then put through an enormous amount of stress, including dealing with the staff conflict and Ms Lamers' hostility, in particular. 137 Ms Matthews argued that in the scheme of things, the incident was a "pretty minor thing." Ms Matthews outlined what had happened and concluded that the applicant had responded to a serious emergency, believing A had been hurt by J, and she had sought to break up the fight. To get J's attention she "tapped" J's face, although the applicant, now properly conceded, it may have been a smack. 138 While the applicant was criticised for not acknowledging what she had done, she wasn't very clear herself as it happened so quickly. Given these circumstances, and after 25 years service with no previous warnings or allegations of any kind, dismissal was grossly unfair. 139 Ms Matthews also raised the unequal treatment the applicant received compared to another employee who was alleged to have smacked a child. That employee had not even been disciplined. 140 As to the alleged mark on J's face, Ms Matthews argued that it was simply unclear precisely how much force had been applied. No other person, except for Ms Lamers, saw a mark on the child's face. Even so, the incident could not be regarded as child or physical abuse, according to the definitions applied by SDN and DoCS. It was also put that it was never really clear who was in charge of the investigation. To say the incident was child abuse, constituted a gross distortion. 141 Finally, Ms Matthews submitted that the respondent was never seriously open to alternatives other than dismissal. Ms Matthews said that the applicant sought reinstatement. For the respondent 142 Mr Paul opened the respondent's case by putting that the parties could not agree as to what happened during the incident involving J. This case was not a request for mitigation, because the applicant simply refused to admit to any wrongdoing. She was the only person who knew what happened. Mr Paul noted that when Ms Lamers told the applicant what J had said, she simply ignored it and didn't take it seriously. She didn't regret the incident or inform J's parents. She didn't even question herself that what she thought was a tap, might be something else. 143 Mr Paul rejected Ms Matthews' submission that this was a minor incident. All of the policies and the relevant legislation refer to ill treatment as child abuse. He referred to the following legislation. 1. Ombudsman Amendment Child Protection and Community Services Act 1998. This legislation obliges an employer to notify the Ombudsman of any allegations of child abuse and inform the Ombudsman of the employer's investigation of the matter. 2. Children and Young Persons Care and Protection Act 1988. Ms Rotherham referred to this legislation and believed that the ' whack ' to J's face constituted ill treatment and therefore, amounted to child abuse. Reference was made to the risk of harm to the child and the requirement for DoCS to liaise with other agencies and the employer. 3. Commission for Children and Young People Act 1998. This Act sets up a regime for notifying disciplinary action taken against an employee which a future employer can access to screen any prospective employee. It is particularly significant in respect to child care workers. 144 Mr Paul responded to the Union's complaints of procedural unfairness in the following way. He put that despite some minor matters, the respondent followed all the required steps of its own policy to inquire and investigate the incident. Information was collected from witnesses and assessed. The applicant was given an opportunity to respond in writing and she did so. She had the advice and assistance of her Union at all relevant times. 145 Mr Paul added that the applicant, who was well aware of the respondent's policies, didn't comply with them herself - notably she didn't make an incident report. Mr Paul said that there was nothing wrong with suggesting that the applicant resign. In any event, she wasn't asked to. 146 Mr Paul submitted that there could be no challenge that Ms Lamers saw a red mark on J's face about 10 minutes after the incident. It must have been a strong tap for the child to remember it as a traumatic experience two months later. 147 Mr Paul said that Ms Lamers' motives didn't matter, as she had an obligation to report the incident to her employer and did so the next day. The version of events she gave was the same as she gave six weeks later. She had expected SDN to take the matter up and spent the next two weeks inquiring as to what had happened. Even if her motive was malicious, Mr Paul argued that it didn't mean the incident did not happen, just as J said it had, when he was interviewed by the DoCS' investigator. 148 Mr Paul contended that there could be no criticism of Ms Rotherham's professionalism, her inquiries and her conclusions. Two of her questions to J were leading, but the interview was extraordinarily fair and open ended. J gave unprompted answers, even when asked if the hit was soft or hard, he had thought about the answer. His response had a "ring of truth to it." 149 Mr Paul put that the applicant's behaviour was unusual. She made no record of the incident, ignored Ms Lamers and sought to approach J to 'make up' with him. She had not told Ms Barns that her actions may have been due to the stress she was under. While she claimed she had been open and honest, this was obviously not the case. The applicant had never acknowledged 'whacking' J. Mr Paul said the applicant was not the sort of person who should be working with children; let alone be the Director of a child care centre. 150 In respect to Ms Udy's conclusions in November 2003, Mr Paul claimed this was a demonstration of how fairly the respondent was acting. Ms Udy had said she wasn't 100 per cent sure something had happened. Yet the applicant responded in an extraordinary letter with a complete denial. Now she says that she may have "tapped" J. She was not contrite, she would not admit a mistake and attacked the motives of Ms Lamers as an excuse for her own behaviour. 151 As to Ms Hall and Ms Hurst, Mr Paul said both teachers acknowledged the requirements of the child protection legislation, but they hadn't said the incident didn't happen. 152 Mr Paul was critical of the applicant's claim that she was open and honest. It wasn't until these proceedings that there were the beginnings of some frankness. Up till then, she had been evasive in the hope it would all go away. She had phoned Ms Lamers when she knew Ms Barns was coming to Bathurst. These were all expressions of guilt to avoid responsibility. She claimed to have been stressed, but said nothing to Ms Barns about losing control or "tapping" J's face. 153 Even when the applicant knew J has been interviewed, she failed to acknowledge her actions. It wasn't until 17 February 2004 that she finally referred to "tapping" J's face. After seeing J's statement, she finally admitted that something had happened; but she still was unspecific. 154 Mr Paul accepted that the applicant was an employee of long standing and the respondent might have acted differently if she had admitted her mistake and sought assistance. Mr Paul referred to the other options considered by Ms Udy. Demotion would have meant more face to face teaching, and there was no other SDN child care centre close to Bathurst. In any event, if an employee can't admit a mistake, how can the employer be guaranteed it won't happen again? This was a poor employee, who couldn't own up to her own behaviour until someone else proved it. 155 As to the allegation of unequal treatment, the letter to Ms Humphries makes no reference to the allegation to DoCS being substantiated. That was the clear difference to the applicant's circumstances. There was no evidence about what happened later concerning Ms Humphries. 156 Finally, Mr Paul put that the applicant's conduct so undermined the trust and confidence of the employment relationship, that it could not continue. See Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160. In reply 157 Ms Matthews emphasised that after the notification by the respondent to the Ombudsman, the Ombudsman's reply indicated that no further action was required. The point was that all of the child protection agencies are required to consider the current or ongoing risk of harm to a child. It was the employer's role to determine whether an employee should be dismissed, not the Ombudsman or DoCS. There was nothing inconsistent with reinstatement and the role of the relevant child protection agencies. However, Ms Udy relied exclusively on the DoCS conclusions - tainted as they were by never having considered the applicant's responses. The result was that the applicant is virtually unemployable as a result of the notification to the Commission for Children and Young People. 158 Ms Matthews stated that the Union wasn't necessarily critical of Ms Lamers reporting the incident to DoCS, but it was critical of her exaggerations and motives. 159 Ms Matthews said it was unfair to claim, as Mr Paul did, that the applicant had trivialised the matter. Anyone observing her in the witness box and being aware of the history of the matter, could not form such a view. The Union had advised her as best it could in a very difficult matter. Picking on particular words or phrases in various documents did not help the respondent's case. It had been unfair to accuse the applicant of wanting to source the allegation or wanting to punish J, as these matters had never been put to her in cross examination. CONSIDERATION The incident on 21 October 2003 160 In order to appreciate the detailed evidence and ultimately decide this matter, it is necessary, I think, to understand what happened during the incident, and immediately after the incident on 21 October 2003. I believe it can be summarised in the following way. 161 Two young boys, J and A, were engaged in a physical fight on a wooden "fort" in the school playground. A was a four year old and a smaller child than J. J was five years old and had a history of aggressive behaviour due, it was said, to a family history of domestic violence and his parents' separation. J was known to be aggressive with other children and reluctant to accept directions from the teachers. 162 The applicant heard A crying and sought to intervene in the altercation. She believed that J was the aggressor because A had a graze on his chin and was hysterical and crying uncontrollably. The graze was later established to have been the result of an unrelated incident. 163 J did not react as most children would have, when the applicant approached the fort. He continued to growl and act aggressively. I shall leave for the moment the nature of the contact the applicant then had with J. 164 The applicant gave priority to comforting child A. J had run away from the fort and sat in a train. He then climbed up a tree. He was coaxed down by Ms Lamers after about 10 or 15 minutes. Ms Lamers stated that J was crying and that he appeared to be "scared to death." He told Ms Lamers that the applicant had "whacked him on the face." Shortly thereafter, Ms Lamers reported to the applicant what J had told her - although the applicant was unsure whether the word 'whacked' was used in this conversation. 165 It is my assessment that had the applicant not intervened in the fight, serious injury may have resulted to either, or both of the children, by them injuring each other or falling off the fort. The applicant had to act extremely quickly to restrain J and avoid further injury to both children. I agree with her description that the incident constituted an "emergency." Having carefully reviewed all of the evidence, I accept unreservedly that there was no deliberate or wilful intention by the applicant to hurt child J or to punish him. 166 The applicant acknowledged that she had made physical contact with J, describing it as a tap on the face to get his attention. Later she agreed she may have smacked him. She now accepted that J believed he had been 'whacked' by her and he didn't feel good about it. 167 At this juncture, I feel compelled to say that it is all very well, in hindsight, to analytically dissect a critical incident, of no more than a few minutes duration, in circumstances where a person in charge of the care of children was required to act speedily to prevent further injury to the children. There were no other adult witnesses to the incident or close by to assist the situation. 168 In my view, as I said earlier, the applicant's physical contact (howsoever described) with J was neither premeditated or a form of punishment. It was, in my judgement, a spontaneous and subconscious reaction made in the heat and speed of the moment. 169 I have arrived at this view, inter alia, by what J later told Ms Rotherham, the DoCS investigator. He said that the applicant had never hit him before, nor had he ever seen her "hit any other kid." This would appear to be entirely consistent with the favourable uncontested evidence of Ms Hurst and Ms Hall as to the applicant's work performance and care for those in her charge, and her long period of otherwise unblemished service in the childcare sector. 170 With these factors in mind, I believe the applicant's actions to be totally out of character for her. Moreover, given her sincere contrition and regret for what happened, I doubt very much whether such conduct would occur again. Application of the Principles 171 While the applicant was paid five weeks pay in lieu of notice, it was not at issue that her termination of employment can be appropriately characterised as a summary dismissal for misconduct. 172 That being so, this case raises the usual principles required to be taken into account in unfair dismissal matters of this kind. I have often had cause to discuss these principles by reference to four questions. Firstly, was the conduct alleged against the dismissed employee proven? Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? Thirdly, did the conduct constitute a fundamental and wilful repudiation by the employee of the contract of employment? Fourthly, did the employer take mitigating factors into account? I shall discuss each of these questions seriatim, in the context of the relevant authorities of the Commission. Was the allegation proven? 173 The Commission must be satisfied that the respondent's onus to prove the allegation has been discharged and make findings, on the balance of probabilities, that the misconduct occurred. 174 The oft quoted authority for this proposition is found in Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principles to regard fault as a particular exception defeating the right only when alleged and proved. The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority 175 This principle was neatly summarised by a recent Full Bench of the Commission in Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 at p86: …where an allegation of misconduct is raised as a defense or as a justification for a particular course of action, the legal burden shifts to the respondent employer (although the onus to be discharged in unfair dismissal proceedings is to establish to the satisfaction of the Commission according to the civil standard of proof, that the dismissal was harsh, unreasonable or unjust): Pastrycooks Case at [83] - [84]) and Price v Box Valley Pty Ltd (1999) 90 IR 480 at 483. 176 See also other Full Bench authorities on the subject in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Shop, Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1; Franklins Ltd v Webb (1996) 72 IR 257, Price v Box Valley Pty Ltd (1999) 90 IR 480 and Bigg & Anor v NSW Police Service (1998) 80 IR 434. 177 It was common ground that the allegation which the respondent found as grounds for the applicant's dismissal was that she had 'whacked' J on the face. I note however, that the respondent's letter dismissing the applicant refers to "the recent allegation of physical harm to a child." There was much debate in the proceedings about what the act of being 'whacked' meant and what constituted, according to degrees of seriousness, the acts of smacking, hitting, touching or inappropriate contact. The Oxford English Dictionary defines "whack" as "to strike with a sharp, resounding blow." Did the applicant whack J with a sharp resounding blow? I have been unable, on the balance of probabilities, to draw any firm conclusions as to the answer to this question. 178 The applicant acknowledged that she had acted inappropriately and that there was some physical contact with J's face. She denied however, that she had 'whacked' him or that the contact left a red mark on his face. 179 The Commission has no reason to question that the child J believed he had been 'whacked' by the applicant. I accept that he used the expression both to Ms Lamers and the DoCS' investigator. I hasten to add that Ms Rotherham accepted the statement of J as truthful. I have no reason to doubt her professional assessment. However, it seems to me that in common children's parlance, particularly with a child who had known physical violence in the home, that the term 'whacked' could mean a number of things including, although not limited to, being smacked, hit or whacked. 180 What happened, of course, was that the respondent adopted what might be said to be a more serious interpretation of the incident because it attached the notion of 'whacked' with the conclusion that the physical contact resulted in a red mark clearly visible on J's face. 181 It is this correlation about which I have some doubts, and leads me to conclude that there was insufficient evidence to substantiate the allegation that the applicant 'whacked' J on the face with such a resounding sharp blow as to cause a red mark. Such evidence included the following: 1. Except for Ms Lamers, no other person said they had seen a red mark on J's face. For reasons I shall later expand upon, I regard Ms Lamers' evidence, particularly on this issue, to be unreliable. 2. The applicant and J had a conversation later that day about a completely unrelated matter which would have appeared to have been inconsistent with J having been " scared to death " of the applicant (as alleged by Ms Lamers). 3. Apart from Ms Lamers, J did not tell anyone, including his mother, about the incident. 4. Ms Hall did not observe J to be in any distress or have any marks on his face shortly after the incident when he returned to the classroom. 5. In J's interview with the DoCS officers, in December 2003, he was asked if he had a mark on his face. He said yes. I do not see how he would have known he had a mark - unless someone told him. There was no evidence that anyone ever did so. 182 At this juncture, I should say that I find that there were some other difficulties in the reliance placed on the interview with J. Ms Rotherham asked an innocent question "Tell me about Mrs Peris." Yet J immediately launched into an answer about being 'whacked' by Mrs Peris - something that occurred two months earlier. The applicant had been his teacher and had known him for eighteen months. From a layman's viewpoint, I must say I find it curious that this would be his first reaction to such a question. Ms Rotherham's professional opinion (which I do respect), was that he remembered Mrs Peris because he was so traumatised by the incident. As I have already mentioned, I do not believe he had been as traumatised as Ms Lamers had led Ms Rotherham to believe. 183 Secondly, in the interview, J mentioned the fight was about a hat. However, that was never said at the time (it was about another child) nor did it feature in any of the subsequent documents or reports of the incident. 184 Thirdly, Ms Rotherham asked if the hit was soft or hard. While it might be said that this was a leading question, one might reasonably expect a child being questioned about a teacher hitting him would, of course, say it was a hard hit. 185 Fourthly, I also find it curious that Ms Rotherham did not ask J if he had told anyone about what had happened at the time. She appeared not to have taken into account, information from J's grandmother that the incident was unlikely to have occurred. 186 While I accept Ms Rotherham's professional opinion and conclusions, particularly in that she believed J had not been coached as to his answers, I am disposed to believe that Ms Rotherham gave J the benefit of the doubt as to answers to leading questions. 187 It seems to me entirely plausible, given J's background and his behaviour (as attested to by Ms Hurst and Ms Hall, and even Ms Lamers) that he knew he may be in trouble for what he did to A, when Ms Lamers asked him what happened. A natural way of deflecting some responsibility for what he had done was to accuse someone else of wrong doing. As a parent and former teacher, one does not need to be a child psychologist or DoCS investigator to understand that this would be a fairly common response from a child who believes he/she may be in trouble. 188 These observations, I hasten to add, do not absolve the applicant's conduct of physically contacting J when she did. I believe it was more than just a "tap." It does however, in my opinion, go to whether the applicant was deliberately intent on hurting the child, or as she explained, it was a spontaneous reaction in attempting to separate two fighting children which, in hindsight, she sincerely regretted. 189 I note further that DoCS made a finding that the allegation against the applicant had been substantiated. However, there was no specific finding of child abuse or ill treatment or that J was at risk of harm, or was at risk of further harm from the applicant. 190 As I shall elaborate upon later, the allegation against the applicant was substantiated by DoCS on 19 December. Yet DoCS officers had not even interviewed the applicant until 16 January 2004. Even more incredibly, DoCS had not received any of the written responses from the applicant to SDN until the 28 January 2004. In other words, at no time prior to making its crucial decision, had DoCS obtained the applicant's version of events. I regard this omission, as Ms Matthews emphasised, as a most serious matter. 191 In summary then, I cannot accept on the balance of probabilities, that the applicant's misconduct could be described as a substantiated allegation of physical harm to the child (as was formally alleged by the respondent in its letter to the applicant). Was the dismissal too harsh a penalty? 192 In Byrne and Anor v Australian Airlines (1995) 61 IR 32 the High Court said a termination of employment "may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted" (p72). In Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 at p302 the Full Commission said: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows : I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. See also Little v Commissioner of Police (No.2) (2002) 112 IR 212, Busways v Johnson (1994) 55 IR 255 and Wells v Commissioner of Police (2000) 100 IR 106. 193 That it is plainly open for the Commission to review the decision of the employer and determine that a particular dismissal was too severe a penalty, is in my view, beyond doubt (see also my conclusions in Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46; 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 and Police Association of New South Wales on behalf of Adam Tregonning, and New South Wales Police Service [2000] NSWIRComm 14). 194 As has been opined many times, it is trite to observe that the summary dismissal of an employee for misconduct can have serious and, sometimes long term implications for the employee. It is for this reason that the Full Bench in Franklins Ltd v Webb (1996) 72 IR 257 reminded employers of the need to be fully satisfied that the misconduct had been committed and that the conduct justified dismissal. The Full Bench said at p261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. 195 I relied on Franklins Ltd v Webb in Hill v Department of Juvenile Justice [2000] NSWIRComm 128, where serious allegations concerning the supply of drugs to juvenile offenders, by a person in charge of their welfare, were the alleged reasons for the employee's dismissal. The allegations had no basis in fact and were not proven. I said at para 62-63: In Standley v Electronics Boutique Australia Pty Ltd , IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects. A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future. See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten , IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia , IRC5224 of 1998, 10 September 1999. The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so. See also Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council and 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. 196 It would seem unarguable that the impact of the applicant's dismissal has been devastating for her and her family. She has over twenty five years unblemished employment history in childcare. She has suffered emotional and psychological distress. She has been the subject of rumour and innuendo. Her reputation has been irrevocably damaged; a fortiori considering her place of employment in a regional New South Wales town. 197 For my own part, I was particularly impressed by the applicant's demeanor in the witness box. She is obviously a sensitive person, who was deeply and genuinely hurt by the allegations and dreadfully sorry if she had caused any hurt to J. I accept her contrition is heartfelt and sincere. She had offered to accept a demotion or a transfer in order to keep her job. These are relevant factors which I have taken into account in determining this matter. 198 There was some criticism of the applicant for not admitting earlier that she had done something wrong. Perhaps with hindsight she may have wished she had. However, the notes of the meeting with the DoCS officer on 16 January do not record what Ms Udy recorded on her own notes that the applicant had said, "I'm putting this in context, but it doesn't make it right." 199 Notwithstanding she may have initially appeared to have been less than forthcoming, I am inclined to the view that this may well have been as a result of believing that she had done nothing wrong. Certainly, after 7 November she understandably believed the matter was at an end. 200 She did not hinder the investigation and co-operated with her superiors. She even attended an initial interview with Ms Barns against the Union's advice. She felt she had nothing to hide and wanted to co-operate with someone she had known for many years. It is particularly pertinent that by 7 November the applicant was perfectly entitled to believe the matter had been duly investigated and was now closed. Ms Udy wrote to her on 7 November and said: I do not believe now that there are reasonable grounds to believe the child is at risk of abuse in the centre, and I will not be making a report to DoCS. 201 Moreover, the Ombudsman was satisfied with the outcome and Ms Udy wrote a letter to staff and parents on 28 November that the allegation was not sustained and no child was at any ongoing risk. To have been positively assured in this way, only to have the matter re-agitated, must have had a frightful and disastrous affect upon her. This contributed, in my judgment, to the unfairness of her eventual dismissal. In view of what she had been led to believe by Ms Udy, it is somewhat disingenuous to now criticise her for what she understood had been resolved as early as 7 November. 202 In view of the aforementioned circumstances and the impact dismissal has had on the applicant, I consider her termination of employment to be too harsh a penalty for the single incident which occurred on 21 October 2003. Repudiation of employment contract 203 It is curious that the respondent did not even use the word 'misconduct' in the letter of dismissal; let alone 'serious' or 'gross misconduct'. As far as I can ascertain the word "wilful" was not referred to at any time. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. The act or acts of misconduct must disclose a wilful and deliberate intent by the employee to repudiate the employment relationship. 204 Did the serious misconduct here alleged constitute a wilful repudiation of the contract of employment by the applicant? In deliberating on this question, I rely upon four authorities which have discussed this matter: In North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions. The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be " wilful ": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (P288). Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. Mr Paul referred me to Concut Pty Ltd v Worrell and Anor . There his Honour, McHugh J, dealt with the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal. See also Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66; Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express and Hunt v Hornsby Shire Council [2001] NSWIRComm 242. 205 In view of my earlier comments concerning the nature of the incident on 21 October, I can find no basis for any conclusion that the applicant's conduct amounted to a wilful or deliberate intent to repudiate the contract of employment. Her dismissal cannot survive any test of being based on a wilful act constituting a breach of the applicant's duties and obligations to the employment relationship. The applicant's dismissal in such circumstances, is therefore rendered nugatory. Mitigating factors 206 It is well held that an employer may take into account an employee's past conduct or warnings when making a decision to dismiss the employee. Authority for this proposition is found in John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517: The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice. 207 As the respondent plainly conceded there was only one basis for dismissing the applicant - the incident on 21 October 2003. She had an otherwise long and unblemished record of employment in the childcare industry. She had character references from at least two other fellow employees. The respondent itself referred to the fact she had given long and dedicated service to SDN. 208 In evaluating all of the material put before the Commission, I am satisfied that the respondent did not give sufficient weight to these mitigating factors in her favour. 209 It is also beyond doubt that Ms Udy took into account other matters that had not been investigated, let alone determined, when she dismissed the applicant. To rely on such matters, was a gross mistake on Ms Udy's behalf. At para 44 of her affidavit Ms Udy said: I was also concerned about the other incidents mentioned by DoCS. If I had not dismissed Cheryl for the incident with J then I would have wanted to investigate the other matters before considering Cheryl's return to work. Although those matters were not critical in reaching my decision I was aware that if Cheryl remained at work then those matters would need to be investigated and an adverse finding on any of those matters would probably have resulted in dismissal. At p151 of transcript Ms Udy again referred to these matters: Q. Now you mention that there were some significant number of other matters raised. As you know, these proceedings are not really about those other matters, but would you agree that they had a strong impact upon your view to dismiss Mrs Peris this time. A. They did, yes, they did. 210 Another issue figured prominently in this case which the respondent was aware of, but did not, in my opinion, give sufficient weight to. This was the involvement of Ms Lamers in the matter and her apparent motivation in ensuring harm to the applicant's continued employment. 211 While I agree with Mr Paul that Ms Lamers' motivation in contacting DoCS was not the issue, as she was obliged to report the incident, regardless of motive, ultimately her involvement with the incident and her statements and comments coloured the view of the investigators (particularly in the absence of any response from the applicant). For example, Ms Lamers told Ms Rotherham in her interview on 4 December that other staff had witnessed the applicant hitting children at the Centre. There was no evidence of this allegation brought forward at the time, or since. In my opinion, Ms Lamers was a person with an axe to grind and she acted accordingly. 212 That being said, I found Ms Lamers' evidence to this Commission to be unreliable. In my opinion, her reporting of the incident was tainted by her antipathy towards the applicant. Her recall of the details of the incident was exaggerated. For example, she described to DoCS the child J's screams, yet in oral evidence said he was crying. Later, she said that crying meant he was upset. She described him as being "petrified" and "scared to death" of the applicant. Yet soon after the incident there was evidence that the applicant had a short, uneventful exchange with him. 213 As mentioned earlier, on 7 November 2003, Ms Udy wrote to the applicant and said: I do not believe now that there are reasonable grounds to believe the child is at risk of abuse in the centre and I will not be making a report to DoCS. After the respondent had found there was not enough evidence to substantiate the allegation and the Ombudsman's office came to the same view, Ms Lamers, a month later, informed DoCS and the President of the Parents & Citizens Association of the incident. 214 At about this time, Ms Lamers was on stress leave due to what she said was, "continuous verbal abuse, harassment, intimidation and stand over bullying tactics from Cheryl Peris." (Exhibit 7) She had even threatened legal action against the applicant. 215 Even if Ms Lamers had a duty to report the matter to DoCS (about which there must be some doubt), why was it necessary to report it to the P & C President? In my view, Ms Lamers' reporting to DoCS and the President of the P & C Association, was little more than a vengeful attempt to damage the applicant in view of her strong antipathy towards her. 216 I am fortified to my view of Ms Lamers' motivation, by the evidence of Ms Lamers herself. She believed she had a responsibility to report the incident to DoCS - but didn't do so until the respondent decided not to. That is, she waited over a month after the incident before doing "her duty." It is curious that her report to DoCS coincided with the applicant's warning to Ms Lamers about her performance. 217 Ms Lamers obviously didn't think it was serious enough to report the incident to DoCS at the time. Not only that, she didn't even bother filling in an incident report with the employer and did not report it to SDN Head Office until the next day. I do not accept her explanation that she didn't do so because she didn't know how to, or that the applicant, as her superior, was required to sign the incident report. 218 Moreover, I note, it was Ms Hall's uncontested evidence that she was the senior teacher in J's room on 21 October and at no time did Ms Lamers tell her about the incident on that day, or subsequently. 219 Ms Udy knew that Ms Lamers was "hostile" to the applicant and, indeed to SDN. There was incontrovertible evidence from the respondent's witnesses that Ms Lamers was herself a source of some staff conflict. Ms Barns gave evidence that when she attended a staff meeting on 28 November, a number of staff expressed the view that they didn't trust Ms Lamers. 220 Ms Barns presented as a thoughtful and sincere witness who was very sad at what had happened to the applicant. I accept her evidence. Ms Udy also attended this meeting and agreed there were staff complaints about Ms Lamers. This information should have signaled that Ms Lamers' involvement in the incident and reliability, at the very least, should have been treated with grave caution. Meaning of harsh, unreasonable and unjust 221 It is now well settled that each of the words - harsh, unreasonable and unjust - have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 222 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power. In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made. 223 A Full Bench authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 224 From my aforementioned comments and conclusions, I am satisfied that the applicant's dismissal on 20 February 2004 fits all the descriptions of being harsh, unjust and unreasonable within the meaning of Pt 6 ch 2 of the Act. Procedural Fairness 225 I turn now to discuss the question of procedural fairness in the context of an unfair dismissal. 226 A recent Full Bench decision of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of serious misconduct. In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited the Full Bench said at para 118: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. To my mind, these observations are unremarkable. They merely reflect the statutory instruction found at s88 of the Act and the long held authorities which identify the matters the Commission may take into account when determining an unfair dismissal claim. These matters include, but are not limited to, whether, (i) a reason for dismissal was given. (ii) any reason given had a basis in fact. (iii) an applicant was given an opportunity to make out a defense or give an explanation of his or her behavior. (iv) any warning of unsatisfactory performance was given. (v) the applicant sought but was refused reinstatement or reemployment. It is significant to observe that the Commission may take other matters into account which it considers relevant (s88(f)). 227 In Byrne & Anor v Australian Airlines, the High Court, concluded that "it is clear that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust.' To this authority may be added the weight of a number of Full Bench decisions of the Commission. In Antonakopoulos v State Bank of New South Wales, the Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . 228 The above reference to Buckman is Buckman v Burdekin (1998) 85 IR 415. In that case, the Full Bench said at p418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness. See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Anor v Australian Airlines; Burke v McGirr (1995) 87 IR 54 ; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32, Antonakopoulos v State Bank of New South Wales and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344. 229 Ms Matthews raised a number of matters said to constitute a denial of procedural fairness during the investigation and which influenced the decision of the respondent to dismiss the applicant. Ms Matthews cited the conclusions in Antonakopoulos v State Bank of New South Wales. I do not regard as significant those matters raised concerning a failure to properly record Ms Barns' interviews with the applicant and Ms Larmers. Ms Udy acknowledged that the respondent's policies had not been strictly complied with in this regard and further staff training was required. I am satisfied that these interviews were appropriately conducted and satisfactorily recorded. The failure to strictly comply with the respondent's policies would not, on its own, render the dismissal of the applicant unfair. 230 However, there was one matter of serious consequence which was a grave defect affecting Ms Udy's ultimate decision to dismiss the applicant. This was the acknowledgement that the DoCS officers made a finding that the allegation against the applicant had been substantiated on 19 December 2003. It was uncontested that at no time prior to 16 January 2004 had DoCS even interviewed the applicant. Moreover, at no time prior to 28 January 2004 had DoCS received written responses the applicant had provided to the respondent in her defence (see evidence of Ms Udy at T.p156). 231 This procedural error was compounded by the fact that the respondent had earlier cleared the applicant of the allegation, publicised the result of its investigation to parents and staff, then changed its mind after an agency, (which hadn't even interviewed the applicant), made a finding that the allegation was substantiated. Put another way, the respondent abdicated its legal, industrial and moral responsibility to the applicant following a flawed finding by a third party. 232 On any view of it, I regard this matter as a manifest example of procedural unfairness. In reaching this conclusion, I find that the applicant's dismissal was both substantively and procedurally harsh, unreasonable and unjust within the meaning of Pt 6 ch 2 of the Act. I so determine. Appropriate Relief 233 As already mentioned, in an unusual final submission, Mr Paul put that if the Commission found the applicant's case had been made out, the respondent would wish to put further submissions as to the appropriate remedy which should flow from the Commission's findings. Ms Matthews did not oppose this course and the Commission has adopted the parties' approach. 234 Accordingly, I direct the parties to confer and, if possible, reach an agreed settlement of the matter in light of my aforementioned reasons for judgment. In the event of a failure to settle the matter, I shall list the matter for further directions at 2pm on Tuesday 21 September 2004. Peter J. Sams, AM 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.