Industrial Relations Commission of New South Wales CITATION: McBain v Peppercorn Holdings No 4 Pty Ltd [2006] NSWIRComm 1182 APPLICANT Hilary Anne McBain PARTIES: RESPONDENT Peppercorn Holdings No 4 Pty Ltd FILE NUMBER(S): 2134 of 2006 CORAM: Ritchie C Unfair dismissal - under s 84 of the Act. Applicant worked in child care centre. Applicant on duty when a child left the Centre alone and walked home. Applicant terminated for lack of supervision . CATCHWORDS: Applicant stated that she had been over in ratio at the time and had not received assistance. Applicant stated that child must have left when she went back to the backyard to collect another child. Commission found that child must have left the Centre prior to this which meant that the applicant had not been aware of the child's absence for a greater period of time. Close supervision of very young children fundamental to the responsibilities of child care workers. Found the termination not harsh, unreasonable or unjust. Commission also found that it did not have jurisdiction to Order the respondent to withdraw notification to the Ombudsman under the Commission and Young People Act. LEGISLATION CITED: Industrial Relations Act 1996 Commission and Young People Act 1998 HEARING DATES: 11/09/06, 12/09/06, 13/09/06, 14/09/06, 04/10/06, 05/10/06, 01/12/06 DATE OF JUDGMENT: 12/19/2006 APPLICANT Mr K Roser of counsel Ms C Rogerson, solicitor Stone+Partners Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr F Lippett of counsel Ms A Gubbins Dibbs Abbott Stillman Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 19 December 2006 Matter No IRC 2134 of 2006 IN THE MATTER OF: Hilary Anne McBain and Peppercorn Holdings No.4 Pty Ltd Application by Hilary Anne McBain re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2006] NSWIRComm 1182 Background 1 Ms. Hilary McBain (the applicant) commenced employment with Peppercorn Holdings No 4 Pty Ltd (the respondent) around June 2004 as an early childhood teacher at a childcare centre (the Centre) located at 58 Duke St, Grafton. 2 On 2 March 2006 the applicant attended a meeting at the Centre. This meeting was chaired by Ms. Rebecca Johnston (Human Resources Manager), Ms Tamir Lee Heu Heu Tukino (New South Wales State Manager),Ms Rowena McIver (National Operations Manager), Ms Anita Reilly (Centre Director) and the applicant. That meeting resulted in the applicant being terminated. 3 On 7 April 2006 the applicant filed a claim for unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996 (the Act). Conciliation was held but was not successful. The hearing of the matter took place in Grafton from 11 to 14 September 2006 inclusive, 4, 5 October and speaking to final written submissions by teleconference on 1 December 2006. At the completion of the teleconference the Commission allowed the applicant to provide written submissions in reply by 8 December. 4 An inspection of the Centre and the common path leading to the unfenced back yard of the Blackadder family in Grafton was carried out by the Commission, in the company of legal representatives, on the morning of the first day of the hearing. Applicant's case. 5 The applicant and a Ms. Carolyn Amos filed statements and were required for cross-examination. 6 The applicant had been employed in the childcare industry for around 15 years. She holds a Diploma of Teaching, Early Childhood and up to 12 years of age, which covered her for also primary school teaching. 7 The applicant stated that she was a fulltime time employee at the point of dismissal but had been advised on Monday 20 February 2006 by the Centre Director Ms Reilly that due to falling numbers of children, her weekly hours would be reduced from 37.5 hours to 16 hours. This reduction in hours was to take place in four weeks time. The applicant was one of several employees that were to have their weekly hours reduced. 8 The following day the applicant, commenced work at 11.00am. She was teaching the 4 & 5 year olds in the Kookaburra Room. There are five rooms( each of which have names) in the Centre, catering for one of the age groups. 9 There are three separate age groups with particular fixed ratios of teachers to children in accordance with state regulation. They are : · 0 to under 2 years of age 1:5-(babies) · 2 years to under 3 years of age 1:8-(toddlers) · 3 years plus 1: 10-(pre-school) 10 At around 5.00pm on 21 February 2006, the applicant stated that she was outside in the backyard. The applicant in her written statement recalled that there were 11 children in the outside area. In the applicant's evidence in chief she stated that a fellow worker Ms Wendy Hartog did a headcount and said to the applicant that there were 12 children. Ms Hartog, who finished at 5.00pm sought and was given approval by the applicant, to go home. 11 The applicant stated that another worker Ms Christine Baez (a floater) took a crying boy about 2 years of age (Billy) from the veranda over to the Possum Room, where she thought he had a sibling. The applicant said that she told Ms Baez that she would have to come back (to the backyard), because she was over in the ratio of children to teachers. That is the ratio was not correct. Ms Baez did not return. Around about 5.10pm she called out to Ms Baez to come back out but received no reply. 12 The applicant then started to pack up the toys around the sandpit and at that point, one child was collected by a parent. The applicant then called out "bathroom time" and the children started to file into the back bathroom. One of the children a Nathan Blackadder, was in the lead. The applicant collected the sign-out books and countered the heads as they filed into the bathroom. Nathan Blackadder was the first child in. One of the children (Jax) however remained in the sandpit. The applicant went and got Jax. The children had gone to the toilet and washed their faces and then gone through the Koala Room through the hall to the Possum Room. The door between the Koala Room and the hallway was open. The applicant said that this door was left open to assist in the air conditioning. The applicant was the last person through the door into the hallway. In taking the children to the Possum Room the applicant noticed that the gate in the hallway was latched open. She said she slammed it shut and opened the door into the Possum Room and went in with the children. 13 She then said that she called out to Ms Baez who was in the kitchen: "Lucky there was not an accident, I've been over." She did not get any reply. 14 The applicant said that she then saw Ms Sharon Blackadder, mother of Nathan, standing in the hallway, waving at her through the window. Ms Blackadder had with her Nathan and her older son Damien. The applicant went outside into the hallway. In an approximate ten minute conversation, Ms Blackadder said that she was about to go and pick her son up when she noticed that he was in her backyard playing. Nathan said that his brother had picked him up. Damien denied this. The applicant said that she had not seen Damien, and she did not know how Nathan had got home. Nathan was signed out at 5.25 pm. (Annexure E to Ex.3 showed that Nathan Blackadder was actually signed out at 5.30pm). Other children were being collected by their parents around this time. 15 The Blackadder family home is located across the street from the Centre, with their unfenced backyard located down a common drive. 16 The applicant said that she then spoke to Ms Michelle Call, a fellow worker and decided to call Ms Reilly and report the incident. Prior to calling Ms Reilly, Ms Baez signed off. She rang Ms Reilly and told her that Nathan Blackadder had got out and that his mother said that his older bother Damien had got him. The applicant said that she had not seen Damien. 17 The following day the applicant awoke with a very sore eye. She contacted the doctor and then Ms Reilly. The doctor assessed that she had an abscess in the eye and prescribed medication and provided her with a certificate for two days absence. She then went to the Centre where Ms Reilly sought that she stay until the Area Manager arrived. Whilst waiting for the Area Manager, Ms Jeanine Pugsley to arrive, the applicant went and obtained her medication and on her return, the three had a discussion about Nathan Blackadder getting out of the Centre. The applicant wrote out her story, which was then typed up by Ms Reilly. She did say that Ms. Blackadder claimed that Damien Blackadder had come and got Nathan, but the applicant never saw Damien. She did not make comment about the open latched gate. Because of her eye she was more intent on going home and believed that she could add to the statement at a later date. Once she signed the statement she went home. 18 The applicant stated that if she had been able to add more to the statement she would have stated that she was angry that she had been over in the ratio and that the hallway gate had been open. 19 Statements were also received from Ms Call and Ms Baez. 20 On 1 March 2006 at between approximately 4.00pm and 5.00pm, the applicant was handed a document by Ms Reilly, Notice of Disciplinary Interview. The meeting would give the applicant the opportunity to respond to the following matters : · Failed to provide adequate supervision on Tuesday 21 February 2006. · A child leaving the centre unaccompanied while in your supervision. The Notice went onto say that this was a serious matter and that if not responded adequately, may result in a counselling, warning or termination. The applicant was invited to bring to the meeting a support person. 21 The applicant brought Ms Carolyn Amos, a person who was living with the applicant at the time, and who also was a parent of a child who attended the Centre. Prior to the meeting, the applicant was advised that as Ms Amos's child attended the Centre, she could not attend the meeting. As a consequence the applicant agreed that Ms Reilly, the Centre's Director would attend the meeting as her support person. 22 The applicant stated that prior to the meeting she went to Ms Reilly and said to her: "Maybe I should mention the gate." Ms Reilly responded: " It will sound like you are babbling. Just answer the questions." and then Ms Reilly said: " For god's sake don't mention the gate." 23 The meeting then took place with the three previously named women. The applicant recounted what had occurred on 21 February 2006. She was also asked about two other incidents. The first was when one of the children had allegedly had part of his hair, cut by another child with some scissors. The applicant stated that she had commenced work on that day at 6.30 am and went home at 2.30pm. She was unaware of the incident as to how the child's hair had been cut. The second incident was with respect to a child getting hold of a stapler. The applicant stated that she was not at the Centre on that day of this incident. 24 The applicant did not mention anything about the gate in the hallway being open on 21 February 2006, during the meeting. 25 The applicant then left the room. About 25 minutes later she was directed back into the room, was terminated and handed a letter of termination. The three women then left the Centre and travelled to Lismore to talk to another staff member. 26 Other than obtaining a few days casual employment at the local primary school the applicant has not been able to secure full time employment. She said she had applied for a job at a new centre in Lismore but had yet to know whether she had been successful. 27 The applicant stated that she received correspondence from the respondent dated 17 March 2006 to state that in accordance with section 39 of the Commission and Young People Act 1998, the respondent had provided details to the Commission for Children and Young People of an employee who had been the subject of relevant employment proceedings. The correspondence stated that her name had been registered with the Commission for Children and Young People in relation to the employment proceeding involving the unsupervised departure of Nathan Blackadder from the Centre whilst he was in the applicant's care. It had been given a Category 1 classification. 28 The correspondence went on to state that should she seek child-related employment in the future, the nature of this relevant employment proceeding would be taken into consideration during the employment screening process to determine her suitability for such employment. 29 She stated that she had tried to obtain alternative employment but had not been successful as many of the childcare centres had been ABC centres. 30 The applicant said that at the inspection of the Centre on the morning of 11 September 2006, she had noticed particular changes had been made. The Centre had been painted, there was no latch on the gate in the hallway, the Kookaburra and Koala doors leading to the hallway are now self closing and remain closed where once they had to stay open, and there were extra signs on the outside of the building. The bathroom doors were now shut where when she worked there they were open. 31 Whilst the applicant was terminated on 2 March 2006 she did not file her unfair dismissal claim for unfair dismissal until 7 April 2006, making the claim 15 days out of time. She stated that she had received advice from Legal Aid about filing for unfair dismissal. She had written to the Registrar of the Industrial Relations Commission of NSW on 10 March 2006 seeking the appropriate forms to be sent to her. Whilst the forms were sent to her there was a delay in filling them out as the applicant had gone and stayed at her daughter's place in Lismore for two weeks, because she was in an emotional state due to her termination. She said that she completed the forms on her return home taking 4 days to complete. 32 The applicant said that she had seen the gate in the hallway latched open during the day when it was rest time for the children. The gate being left open allowed for staff to walk through without having the gate bang shut and wake the babies who were in the adjoining room. 33 The applicant in examination in chief denied or responded to the allegations found in the statements of Ms Chard, Ms Collins, Ms Eggins, Ms Heath, Ms Moran, Mr Phillipson, Ms Silk, Ms Call, Ms Baez, Ms McClelland, Ms Takino, Ms McIver and Ms Riley. 34 In cross examination the applicant stated that she had started with 12, then 11 children in her care ( on 21 February 2006 at 5.00pm). One child was taken inside by Ms Baez and another child (Natasha) was picked up by her father. When Natasha's father picked her up, the applicant spoke to the father and did not see any other child follow them out. The applicant maintained that she was still over in ratio. The applicant said that she signed another child out at 5.15pm and it was after this that she went into the hallway and saw the gate latched open. When she closed the gate she was unaware that Nathan Blackadder was out. 35 She agreed that due to both the bathroom doors (leading into the Koala and Kookaburra Rooms) and the doors from those two rooms into the hallway being open then a teacher would have to be diligent. She also stated that the second assistant/teacher would make sure the doors between the hallway and the Kookaburra and Koala Rooms were shut and then sit in the Kookaburra Room on the mat ready to tell the children a story when they came inside after playing in the outside sandpit. 36 The applicant was clear that the doors from the Kookaburra and Koala Rooms into the hallway were not self-closing on 21 February 2006. It was her evidence that the first time that she had seen the self-closing mechanism attached to the two doors was on the day of the inspection with the Commission. 37 The applicant confirmed that she told Ms Reilly that she had a sore eye and that she wanted to go home on 22 February 2006 and apply the medication that she had just purchased. She could not administer the medication to her eye until she arrived home, as she could not drive a car once the eye drops had been administered. She had wanted to do the statement over the phone but Ms Reilly insisted that it be done, face to face. 38 In cross-examination the applicant stated that during the meeting of 2 March 2006 the applicant was spoken to about a child having his hair cut by another child. She stated that she was unaware of the incident on the day that it occurred. She had had a discussion with Ms Reilly about the incident but it did not result in any disciplinary action taken against her. Also an issue was raised about a child having in their possession a stapler with the date of the incident being 17 January 2006. The applicant was unaware of this incident. 39 The applicant gave evidence that on 27 January 2006 she commenced work at 6.30am and worked by herself until 8.30am. In the intervening time at least 18 children were signed in. 40 In answering questions from the Commission, the applicant could not give an answer as to why she did not include the issue of the gate being open in the hallway, either in her statement dated 22 February 2006 or make comment of it during the interview of 2 March 2006, notwithstanding that she recognised that it was a very important issue which could result in the loss of her employment. 41 Ms Amos gave evidence to state that she had on occasions whilst either dropping her children off in the morning or picking them up in the afternoon, seen the gate in the hallway latched open. She had seen the gate left unlocked when adults had gone through it. She said that she had reported this to Ms Reilly. 42 On the night of 21 February 2006, the applicant had told her that she was really upset and devastated over what had occurred. The applicant had told Ms Amos that she had asked Ms Baez to come back out and help her but she had ignored her and stayed inside doing the washing up. 43 Ms Amos stated that on 2 March 2006 whilst waiting in the Centre for the interview to take place, she heard the applicant say to Ms Reilly: " Should I talk about the gate." Ms Amos said she did not hear the whole reply but only: "Oh, no I don't think………..". 44 In final submissions the applicant's legal representative Mr Roser stated the following: that whilst three employees were on duty that afternoon, only one was disciplined, she was the scapegoat, the physical layout of the Centre contributed to the escape of the child, at the time of the departure of Ms Hartog the applicant was over in the ratio of children to carer, she unsuccessfully sought the assistance of Ms Baez, the hallway gate had been left open, the making of the statement by the applicant,(which she believed she could amend at a later time) whilst she had an abscess to her eye, the lack of an independent witness at her disciplinary hearing and the difficulty she had experienced in obtaining alternative employment. 45 Mr Roser stated that the termination was harsh, unjust and unreasonable because: no complaint had been received from Nathan's mother, no harm had been suffered by Nathan, no clear evidence as to how Nathan got out without being seen, the inability of Nathan to open doors in the Centre, the applicant slamming the hallway gate shut and speaking to Ms Baez, the difficult position the applicant was in as a consequence of Ms Baez not returning to assist the applicant, only the applicant requiring to account for her actions, no opportunity for the applicant to respond to the claim that she lacked remorse and or her lack of appreciation as to the gravity of the situation, no proper investigation of the facts took place, no prior warnings given to the applicant and the respondent's misunderstanding of the criteria for the notification and its ramifications. 46 As a consequence of there being a corporate restructure of the respondents business which now does not employ anyone, the applicant's legal representative sought re employment to another of the ABC childcare centres in the North Coast or six months salary by way of monetary compensation. Respondents Case. 47 The respondent filed a number of affidavits. In this Decision I have sought to only identify that evidence that was relevant to this case. 48 Ms Anita Reilly the Director of the Centre gave evidence. She has been the Director since mid 2005. She stated that there existed a mechanism fitted to each door that made the door from the Kookaburra and Koala Rooms into the hallway self closing. It had been that way since she started in 1999. Both the doors from the hallway to the Koala and Kookaburra Rooms have door handles at adult height. Ms Reilly stated that she believed that the applicant breached company policies on supervision and persons of authority picking up children. 49 In cross- examination Ms Reilly stated that she had yet to provide a formal counselling to any of her staff but she had issued a number of written warnings. She had not seen anyone terminated before the applicant. 50 On 20 February 2006 Ms Reilly advised two assistants and the applicant that they would have their weekly hours reduced due to financial pressures. 51 On the following day Ms Reilly received a phone call at home at approximately 5.30pm from the applicant. It concerned a child leaving the Centre and being brought back by his mother. The applicant stated that an older brother had taken him home. The applicant said she had been transitioning eleven children from the Koala Room to the Possum Room and had gone back to get some slower children, so therefore the children had been left unattended in the hallway. In the telephone conversation the applicant was unsure whether the hallway gate was open or closed. Because Ms Reilly was having difficulty in understanding what the applicant was saying as to what had occurred, she ceased her phone call with the applicant, and rang Ms Call at the Centre in order to try and clarify matters. After that phone call she then rang her Area manager Ms Janine Pugsley and advised her of the incident. 52 The following day she spoke with the child's mother. Mrs Blackadder said that she had spoken with her son Nathan, who said he had walked home alone. His brother Damien denied bringing his younger brother home. 53 On that morning she received a phone call from the applicant to state that she had a sore eye and that she was going to the Doctor. She arrived at the Centre at approximately 11.00am and handed in a medical certificate. Whilst the applicant stated that she did not wish to stay, she was requested to go and get her medication and return. On her return the applicant hand wrote her statement out which was then retyped by Ms Reilly. Ms Reilly obtained statements and or spoke to other staff on duty that afternoon. 54 Ms Reilly said in the week after the incident she took away the latch on the hallway gate, so the gate located in the hallway could not be latched open. It had previously been latched open for specific reasons, such as after 6.00pm by the cleaner, or by the cook when bringing in groceries or when a group of children would be led out of the Centre when going on an outing. The self closing doors between the Koala and Kookaburra Rooms and the hallway were locked open early in the morning, prior to the children arriving, to allow the air conditioning to cool the whole Centre and sometimes during the children's rest time. 55 On 1 March 2006 Ms Reilly gave the applicant a Notice of Disciplinary Interview to take place the following day. 56 Prior to that meeting commencing, Ms Reilly was advised by the visiting management that it was inappropriate for Ms Amos to be the applicant's support person. She advised the applicant of this and the applicant agreed that Ms Reilly would take Ms Amos's place for the interview. Ms Reilly sat in on the interview but did not speak. Ms Reilly identified from the letter of termination, the two other incidents mentioned. One was an incident when a child got hold of a stapler and the other, when a child had his hair cut, allegedly by another child with a pair of scissors. Both incidents allegedly involved the applicant as a consequence of a lack of supervision. Neither incidents resulted in a written warning being raised and given to the applicant. 57 Ms Reilly stated that if an employee was in the backyard and required assistance from a fellow worker who was in the kitchen, then the employee would go to the sliding door on the verandah that leads into either the Kookaburra or Koala Rooms and call from there. There existed also static open internal windows in both the Koala and Possum Rooms for such an action. If there was no response from the other employee, then the employee would gather the children and bring them inside the Centre until the employee found someone. 58 There was a break at the end of the interview held on 2 March, during which the decision was made by the three women to terminate the applicant. Ms Reilly said she was not asked for any advice nor did she play any part in the decision to terminate the applicant. That decision was put in writing and given to the applicant. 59 Ms Reilly denied that prior to going into the meeting with the applicant on 2 March that any conversation took place between the applicant and herself concerning the hallway gate being open. 60 Ms Christine Baez gave evidence that she had worked at the Centre for eight and one half years and was on duty on the afternoon of 21 February 2006 at the Centre. On that day she was employed as a floater. As a floater she filled in for other staff as required and assisted staff in locking up if necessary. On that day her shift was to finish at 5.30pm. She said that at approximately 5.00pm she spoke with another employee Ms Hartog out on the back verandah. Ms Hartog told her that she had spoken with the applicant and that Ms Baez was not required to assist in supervising the children, so she went back to cleaning the kitchen and laundry. She denied that the applicant had spoken to her about the applicant being over in ratio. She stated that to the best of her knowledge through a conversation with Ms Hartog, there were 11 children out in the back yard and 2 parents were in attendance, which meant there were 9. She did not recall if there was a child under the age of two or a baby in the backyard at the time. As she was not required she went to the laundry. She did not recall a crying child named Billy. 61 She did recall the applicant later coming into the kitchen and asking her why she had not come back out. Ms Baez said she was confused by this comment as she had been told by Ms Hartog, that she was not required. As she was not required out in the backyard, she had kept on working inside the Centre. She stated that whilst working in the kitchen she had not heard the hallway gate being closed or opened. Ms Baez did not believe she would have heard the applicant calling from outside if she had been in the laundry or any of the other areas nor would she have heard the gate close if she had been in the laundry or Gumnut Room. She was unaware of the child leaving the Centre, until she was told by Ms Reilly the following day. She did not see Ms Blackadder on 21 February 2006. 62 Ms Tamir Lee Te Heu Heu Tukino was the NSW State Manager at the time of the termination of the applicant. She now holds the position of Start Up Manager. She stated that she was made aware of the incident that occurred on 21 February 2006 and directed the Area Manager to organise written statements from employees. She also stated that she was part of the interview team that spoke to the applicant on 2 March and that she had approached the applicant to advise her that it would be inappropriate for Ms Amos to be the applicant's support person in the interview. It was her experience that parents are "gossips" and the respondent wished to maintain confidentiality in this matter. 63 Ms Tukino then went through the interview of 2 March stating that at 5.00pm the applicant had 11 children in her care. This was allowable as there was another carer within sight or sound of her. She recounted that the applicant had said to Ms Wendy Hartog not to leave at 5.00pm, but she did. 64 Ms Tukino stated that she did not speak during the interview but just took notes. At the conclusion of the meeting she, Ms Johnson and Ms McIver then reviewed the statements of other staff, the attendance sheets, the applicant's responses, her complacency and her lack of remorse. Lack of remorse meaning that the applicant did not come across as being overly concerned about the situation. It was her view that this lack of remorse wouldn't result in any better supervision. She never stated that she had learnt her lesson, just shrugged her shoulders. The applicant's comment that "she didn't have eyes in the back of her head" was not appropriate for someone who had the applicant's qualifications. Someone with her qualifications should be aware of where the children in their presence, are at all times. The applicant did not display the qualities that Ms Tukino believed were essential for her position. 65 It was her view that the child, Nathan Blackadder left the premises with another family. Ms Tukino held that view although no family was interviewed about such a possibility. 66 A few days after the termination of the applicant, the respondent notified the Ombudsman and also the Commission for Children and Young People. The Commission was notified that it was a Category 1 notification. A Category 1 means that an employee has potentially left a child at risk of danger. In accordance with the law the respondent notified the applicant that a notification had been made to the Commission for Children and Young People. 67 Ms Tukino said that in her experience, the sign out time by a parent was the actual time the parent left the premises of the Centre. The parent had been on the premises for a period prior to that sign out time, collecting their child, their possessions and talking with their teacher. 68 In answering questions from the Commission, Ms Tukino said that two other issues were raised at the termination meeting on 2 March, but in her view the two previous incidents did not result in termination. The applicant was terminated for what occurred on 21 February 2006. 69 Ms Rowena McIver gave evidence. She is the National Operations Manager for the respondent and for ABC Developmental Learning Centres Pty Ltd. She stated that she was part of the group that inspected the premises and spoke to various employees prior to interviewing the applicant on 2 March 2006. At no time did she speak to any parent present on that afternoon of 21 February 2006. She said that the applicant's responses to questions led them to believe that a similar incident could reoccur. The applicant showed no remorse for the situation. It did not seem that this incident had really scared her and that it would not happen again. If she had shown remorse she may not have been terminated. 70 She showed a lack of understanding of the potential harm that may have come to the child, being the Centre is beside a busy road and a railway line. The applicant was the person in charge that afternoon. In response to a question from the Commission Ms McIver stated that even if the applicant had a spotless record, the result of being terminated would have been the same. The decision was based on the fact that there was just no comprehension by the applicant of the seriousness of a child leaving a centre unaccompanied. She was terminated for what occurred on 21 February 2006. Even if the child had been taken out of the Centre by his brother without the knowledge of anyone, Ms McIver said the result would have been the same as the applicant should have been aware of the movement of the child under her care, leaving the Centre. 71 Ms McIver's best guess concerning how the child left the Centre was that he left with another family without the applicant being aware. 72 Ms Wendy Hartog stated that she had been in the child care industry for three and one half years working at the Grafton Centre. On 21 February 2006 she was working the 9.00am to 5.00pm shift. Prior to leaving the Centre on that day she spoke to the applicant to confirm that if she was okay by herself or if she needed Ms Baez. The applicant responded that she was okay without Ms Baez. As she was standing on the verandah at the Koala Room door entrance, she was approached by Ms Baez. Ms Hartog advised Ms Baez that she was not needed outside as per her conversation with the applicant. 73 Ms Hartog was aware that one child was due to be picked up very shortly, and that would mean that the ratios would be correct. 74 Prior to leaving, and prior to speaking to Ms Baez, Ms Hartog had done a headcount and there were 11 children left in the 2-5 old group playing outside. That number of children was the number as shown in the Centre's attendance book for that day. She confirmed that in the later part of the afternoon, as the numbers reduce the Gumnut children would join with the older children. On that day Ms Hartog had no memory of a crying child by the name of Billy. She did remember that Nathan Blackadder was one of the children playing in the sand pit when Ms Hartog left because she remembered the child waving her goodbye. 75 Ms Hartog confirmed in evidence that both doors leading from the Kookaburra and Koala Rooms into the hallway are self- closing and that there are sliding doors between the kitchen and the hallway. She did not believe that Nathan Blackadder could open the self-closing door between the Koala or Kookaburra Rooms and the hallway by himself. 76 Ms Hartog stated that, if there were a requirement by the applicant for assistance outside, then the applicant, would go to the door and yell out to Ms Call or to Ms Baez. 77 On exiting the Centre Ms Hartog did not see Ms Call nor any parents and the hallway gate was closed. 78 Ms Michelle Call stated that she had worked in the childcare industry for four years and is currently a team leader. She commenced working at the Grafton Centre in June 2002. It was her evidence that the doors from the hallway into both the Kookaburra and Koala Rooms are self-closing and have been since she commenced work at the Centre. The two self-closing doors could be left open by a device located at the base of the door and a socket located at the skirting board. These doors were latched open to allow the front of the building to benefit from the air conditioning at the start of the day and during rest time in the middle of the day. There also exists two sliding fire doors from the kitchen into the hallway. She did not believe that Nathan Blackadder was physically capable of opening the doors, either between the bathroom and the Koala or Kookaburra Rooms or from those rooms into the hallway 79 On 21 February 2006 Ms Call worked a 10.30am to 6.30pm shift. On that day she was working in the nursery. At approximately 5.00pm she had 5 children. During the afternoon Ms Baez came into the Possum Room (the nursery) and told her that the applicant was okay for staff numbers and therefore she would be in the kitchen. 80 At approximately 5.20pm the applicant came into the nursery with about 6 to 8 children. She later wrote in the daily attendance form that 7 children were brought into her room by the applicant. Ms Call said that she heard the applicant speak to Ms Baez and ask Ms Baez what had she been doing since 5.00pm, because she had been left with 13 children by herself and had to pack the backyard away by herself. Then the applicant approached Ms Call and repeated this to her. 81 A few minutes later Ms Call saw Ms Blackadder enter the Possum Room and talk to the applicant. Approximately 5 minutes later the applicant came back into the nursery and said that Damien Blackadder had taken Nathan. Their mother had told her this. Their mother was concerned that the Centre would not know where Nathan was so she came over to the Centre to explain what had happened. When Ms Call asked the applicant had she been aware than Nathan was gone, she did not respond. The applicant said that she did not understand how Nathan had got out as all the doors were shut. She had seen him in the backyard and thought that his older brother Damien had taken him when they were walking between the Koala and Possum Rooms. Ms Call said that she pointed out to the applicant that this was not possible as they would not have had enough time to return home and, then with their mother return to the Centre. 82 Ms Call said that she then advised the applicant to call Ms Reilly and report the incident. The applicant was reluctant to make the call but did so after Ms Call said that she would call her, if the applicant did not. 83 Ms Call said that she did not see either Nathan's brother that afternoon nor did she see Nathan exit the Centre that afternoon, nor did she see the hallway gate latched open that afternoon. She also stated that she did not remember seeing Ms Hartog leave the Centre that day. 84 When she arrived home on 21 February, Ms Call said she wrote down in brief what had occurred. She did this as she believed Nathan Blackadder's unauthorised leaving of the Centre was a serious issue. The next day when asked by Ms Reilly to write a report of what had happened that previous day, she used her jottings as the basis of her report. This report was attached to the Affidavit of Ms McIver. 85 Ms Karina Jean Silk gave evidence to state that she had worked at the Centre for two and one half years. She stated that the doors leading from both the Kookaburra and Koala Rooms into the hallway were self closing and had been since she had commenced at the Centre. She also confirmed that there existed sliding fire doors from the kitchen into the hallway. It was her evidence that frequently when the applicant transitioned the children she was caring for into Ms Silk's room the applicant would not know how many children she was supposed to be transitioning to her. On one occasion she found a child wandering in the hallway whom she believed was under the care of the applicant. 86 Ms Jessica Ann Moran gave evidence to state that she had been working at the Centre for two years. She also confirmed the same evidence with respect to the hallway and kitchen doors as given by other witnesses of the respondent. 87 Ms Suzanne Eggins gave evidence to state that she had been working at the Centre for the last ten years. She also gave the same evidence as both Silk and Moran with respect to the hallway and kitchen doors. She also confirmed that the doors from the Kookaburra and Koala Rooms into the hallway could be latched open. In the period of time that she has worked at the Centre she had never seen the hallway gate locked open without an adult present. 88 Ms Vanessa Collins stated that she had been working at the Centre for the last nine and one half years. In her view Nathan Blackadder would not be able to open the doors from either the Koala and Kookaburra Rooms into the hallway or from the bathroom into either of those two rooms. She confirmed the evidence of other respondent witnesses that the doors from the Koala and Kookaburra Rooms were self closing and have been during the length of her employment. 89 In response to a question from the Commission, Ms Collins stated that when transiting children from say the backyard to the bathroom and one child stays outside, she would stand at the bathroom door and call for the child to come. If the child did not come, then she would take all the children out of the bathroom, stand them on the verandah and then go and bring the child back and collectively go back into the bathroom. Then open the door into say the Kookaburra Room and proceed through together. 90 Whilst the Centre's cleaner a Mr Robert Bernard Mittman filed an affidavit, it was agreed between the parties that he would not give evidence on the basis that the parties agreed that the Commission would place no weight on the evidence given by the applicant with respect to the work practices of Mr Mittman and the latching back of the hallway gate, as expressed by the applicant. 91 Ms Elizabeth Patricia Nichols gave evidence to state that she was a lecturer in education at the University of Southern Queensland. She has spent her business life owning and running child care centres, she had lectured and developed courses for TAFE and universities as well as being engaged to provide services on a consulting basis to the Australian Early Childhood Association and the Federal Government in relation to early childhood issues. 92 Ms Nichols first affidavit detailed the importance society placed upon child protection and safety. The concern that parents had in entrusting their child into the care of another person and the view that society had that we do not feel that our children live in such a safe environment. In her training of students, they are required to develop a strategic plan for a Centre reflecting what the student considers is the most important element. Almost invariably at the top of the list is safety. 93 In giving evidence Ms Nichols was given a scenario to answer as to what she would do, where a child fails to come back into the Centre from the backyard, when all the other children did. Her response would be that if she failed to entice the child back into the Centre then she would leave the children, making sure they could not get into the hallway and then physically go and retrieve the child. It was her view that as a child has to go through doors then it would be an adult who would open them and the child would follow. With respect to children, the most important thing is supervision. Ms Nichols also stated that it was important for there to be good communication between the carers. Techniques were taught to carers with respect to the transiting of children from one place to another. If a carer sought the assistance of a fellow carer but could not contact that person then using the assistance of a parent to get that carers attention would be appropriate. 94 The Commission asked Ms Nichols, how a carer should be aware immediately if a child is missing or unaccounted for, as she stated in one of her affidavits. She gave the following answer : A. If you know the children well that you are caring for, because you have built up a relationship with those children, you do it through a number of ways. You can either do it simply through a head count but quite often you can do it visually. You know that there are these children there, where you've seen them last and you will say, "So and so is missing". It is part of your job that you learn to recognise and know where the children are. So you automatically will recognise if a child is missing. If you are inexperienced and you are only starting working with children there are techniques that we help people understand how to perform that enable them to keep children in their minds. It is one of the skills that you learn as an early childhood worker, being able to account for the children. Q. What does that therefore require a child worker to be doing, a visual recognition of where the children are at all times ? A. Yes, that is something that we work with students on, to get them to understand that you position yourself in such a way that you can see all the children, you know where they are and particularly at times when children are being picked up and collected, it's always a busy time and there is lots of movement going on, you have to be extremely alert and you have to know where those children were. 95 It was her view that a person who is properly supervising children in her care, even on their own with 10 or 11 children should be immediately aware if a child is missing or unaccounted for. In her view a person who fails to meet these standards should not be employed in the childcare industry. 96 In final submissions Mr. Lippett made the following points. If it is found by the Commission that the applicant was culpable in relation to Nathan's escape, then it has to be also determined whether that justified her termination. He stated that the applicant gave contradictory evidence and her version of what occurred on the afternoon of 21 February 2006 can not be accepted when compared to the evidence of other witnesses and the time line of that afternoon. In his view the departure of Nathan was caused by one factor and that being the inadequate level of supervision by the applicant. He also stated that the Commission could not make an Order for reinstatement against the respondent for the respondent no longer employs people. The entity that now operates the Centre is a separate franchise so therefore compensation is all that could be awarded. Consideration and decision 97 In this matter the first issue that must be determined is that this application was filed out of time. 98 The applicant was terminated on 2 March 2006 and filed her application on 7 April 2006. Her unfair dismissal claim was therefore filed some 15 days out of time. 99 Section 85 of the Industrial Relations Act, 1996 requires applications to be filed no later than 21 days from the date of termination. Section 85(3) allows the Commission to accept an application out of time having regard to : (a) the reason for, and the length of, the delay in making the application and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal. 100 As expressed in evidence the applicant went to her daughter's home in Lismore on the weekend following her termination and returned home on Tuesday 7 March 2006. She then wrote to the Commission on or around 10 March. The applicant then went and stayed with her daughter for two weeks because she was upset as a consequence of her termination. When she returned home the application had arrived. Over the next 4 days she completed the form and then sent it to the Commission's Registry. 101 It is my view that whilst no hardship would be experienced by the respondent if the application is accepted, a great deal of hardship would be visited upon the applicant if her claim was not to be accepted by the Commission, taking into consideration her geographical location and limited opportunity for work in the area that suits her qualifications. It is also my view that the conduct of the employer paid no part in the delay of the application being filed. 102 In summary, it is my view that taking into consideration the somewhat brief period of time that the applicant was late in filing and the degree of hardship that she would experience if the application was not accepted, it is my finding that the applicant has discharged the onus of establishing "a sufficient reason" and I will therefore use my discretion and accept this out of time application. I note in the respondent's final written submissions that the applicant's explanation for the delay was not contradicted and the delay itself was not lengthy, then it would be properly open to this Commission to accept the application. 103 From the outset I should state that it is my view that a young three year old child absconding from a child care centre is a very serious matter. On leaving the Centre the child Nathan passed through the Centre's car park, crossed a wide primary street and then walked down a common path to arrive at his unfenced backyard, a journey of some 150 metres. I do not accept the submission of Mr Roser that as Nathan's mother did not complain to the Centre about what had occurred nor was the child harmed, then these two elements in some way should have been taken into account when dismissal was considered. In my view, it was only by good fortune that the child made his way home without any mishap. The child was exposed to danger the moment he left the front door of the Centre, be it in the Centre's car park, or the crossing of the road if he took the direct way home. In evidence it was stated that he was a boy that was easily distracted. The child could have been distracted by a passing train which runs very near the Centre and gone to investigate. That his mother did not complain in my view is not relevant. Whilst Mrs Blackadder may have had her own reasons for not lodging a formal complaint to the Centre Director, it is my view any parent would have justifiable cause to make a complaint if such an incident occurred to their child. Also whether a parent makes a complaint or not should not be the criteria as to whether action is taken. Surely it is the standards of the Centre that dictates whether action is taken. 104 A great deal of evidence was provided to the Commission from the witnesses with respect to what occurred on the afternoon of 21 February 2006, including the actions of the applicant and the other employees at work that afternoon, the actions and location of the children, the workings of the doors in the Centre and the numbers of children on site. Conflicting evidence was given to the Commission. 105 Both the applicant and Ms Hartog in their written statements stated that at 5.00pm there were 11 children in the backyard. The applicant in her verbal evidence said she had 12 children. In her verbal evidence she stated that she took 9 children into the bathroom. Her written statement made the day after the incident stated she took 7 children into the bathroom and 7 children into the Possum Room. A number that is confirmed by Ms Call who was in the Possum Room. 106 In evidence the applicant stated that at about 5.10pm she commenced moving the children from the back yard into the bathroom so they could go the toilet and wash their face. She stated that Nathan was first in. She also stated that the doors from the bathroom into the Koala and Kookaburra Rooms were open as were the doors from the Koala and Kookaburra Rooms into the hall way. She said she went back to get another child who had not come into the bathroom. When she returned there were children at the door and in the mat in the Koala Room. At her command the children then all went through the Koala door into the hallway with her bringing up the rear. The children went down the hallway where the applicant opened the door into the Possum Room and the children went in. She had noticed that the hallway gate was latched open so she slammed it shut and spoke to Ms Baez. She placed the folders that the parents sign on the shelf, looked up and saw Mrs Blackadder at the window. The applicant said that she and Mrs Blackadder then met in the hallway, inside the hall way gate and had a discussion of about ten minutes concerning Nathan and him arriving home. Mrs Blackadder then signed her son out at 5.30pm. 107 In my view there are two main possible scenarios as to how and when Nathan left the Centre. The first is that Nathan, shortly after 5.00 pm, left by trailing behind a parent and their child as they went through the Centre and then made his way home. The second is that Nathan by himself left the Centre when the group came inside from the backyard at approximately after 5.10pm. 108 I am satisfied that Nathan was in the backyard at 5.00pm when Ms Hartog got the approval from the applicant to go home. The applicant stated that Nathan was the first one into the bathroom around 5.10pm. It should be noted that the applicant signed a child out at 5.15pm whilst still in the backyard. That would then require the three year old to then vacate the Centre almost immediately for him to be brought back to the Centre by his mother at around 5.20pm for him to be signed out at 5.30pm. Whilst it is humanly possible, I have grave doubts as to that actually happened. In considering the facts and based on the balance of probability, it is my view that the child must have left the Centre, prior to the group playing outside being directed by the applicant to go into the bathroom. I find it difficult to accept that Nathan came in from the backyard with the group after 5.10pm, travelled through the (self closing) doors that he would have had to pass, through the hallway gate, walk through the car park, cross the road, walk up the common path to his backyard, commence playing with his brother and other children, be sighted by his mother and then be brought back to the Centre, his mother have a conversation of approximately ten minutes with the applicant and be signed out at 5.30pm. I am also satisfied based on the evidence of the various witnesses of the respondent and the lack of evidence of any maintenance records to the contrary, find that the doors between both the Kookaburra and Koala Rooms that open to the hallway are self closing doors. It is my finding that the applicant was wrong in her statement that the self closing devices attached to those doors were fitted post her termination. Whilst nothing of substance turns, I also find that there did exist kitchen doors that could slide into the wall cavities. As expressed above, the applicant said that the doors from the bathroom into the Kookaburra and Koala Rooms and from those rooms into the hallway were open when she first brought the children in from the backyard. If that was the case, why would an experienced person such as the applicant leave a group of young children alone whilst she returned to the backyard (to collect the young child who had stayed and not followed the group), with all those doors open giving the children an easy access into the hallway and perhaps beyond. When she did usher the children into the hallway leading to the Possum Room she brought up the rear. 109 The applicant said that she called for assistance to Ms Baez. Ms Baez said that she did not hear such a call. It is quite possible that did occur. Ms Hartog had been given approval by the applicant to go home at 5.00pm on 21 February and she had then told Ms Baez that she was not needed out in the backyard. Ms Baez denied being told by the applicant that she was required to return to the backyard. Mr Roser was critical of Ms Baez in that she did not come back out to the yard to check on whether the applicant was needing help. Ms Nichols gave evidence as to what should have happened in such circumstances where a carer requires assistance. Ms Nichol's stated that control of the children was fundamental. Gaining the assistance of a parent was an option. At all times you maintain eye contact with the children. The children could have been marshalled together on the back verandah and not allowed to enter the wash room until the child in the backyard had been collected and then all children proceed into the bathroom or allow the children into the Kookaburra Room, with all doors shut and retrieve the child from the backyard. An action that would take, in the applicant's view some 15 to 20 seconds to walk from the bathroom door to the sandpit. In her experience, these techniques were taught and reinforced to carers. 110 If as I have stated that Nathan left prior to the children being ushered into the Centre at approximately after 5.10pm, then the applicant was clearly remiss in not recognising that one of the children she was responsible for had already gone. 111 The applicant stated that when she came to the hallway gate, sometime after 5.10 pm it was open and she slammed it shut. Ms Baez who was in very close proximity in the kitchen, did not hear the gate being slammed shut. She did not see the gate open when she came back into the Centre from being outside. Nor did Ms Hartog when she left the premises after 5.00pm nor Ms Call whilst she was working in the adjourning Possum Room. In the phone call that took place on 21 February 2006 soon after 5.30pm between the applicant and the Centre Director Ms Reilly, Ms Reilly's evidence was that the applicant could not remember if the hallway gate was open. The statement that the applicant compiled the following day made no comment about the hallway gate being open. Prior to her disciplinary meeting on 2 March 2006, the applicant stated that she had spoken to Ms Reilly about the open hallway gate and whether she should raise the issue during the meeting. She was told not to. Ms Amos could only give partial support to this alleged conversation which was rejected by Ms Reilly as never taking place. Questioned by the Commission as to why she had not raised the issue of the open hallway gate, she could not give any reason. The applicant is a mature experienced person, who in my view, did not show any reluctance to deliver her views when provided the opportunity when giving evidence. 112 Based on the evidence before me it is my finding that the child Nathan must have left the Centre soon after 5.00pm, by trailing behind a parent picking up their child and exiting the Centre. This would mean that the applicant was unaware of the child missing from that time until approximately 5.20pm when his mother returned him to the Centre. 113 The number of children that the applicant had charge of when outside in the backyard was the subject of disagreement between the parties. The applicant's own evidence with respect to numbers varied. In her written statement (Ex A) she stated that at 5.00pm on 21 February 2006 there were 11. In her oral evidence she said there were 12. When the children were taken to the bathroom, the applicant said there were 9. When the children were taken into the Possum Room Ms Call signed for 7. That was the number that the applicant stated she had when she made her written statement the following day. 114 Much was made during the hearing of this matter that the applicant was over in her ratio for a period of time. This she was, but at 5.00pm there were two parents in the backyard. When the applicant moved the children from the backyard to the bathroom and then through into the Possum Room, she was in ratio. If for a short period of time she was over in ratio, then the number would have been by one and I accept the evidence of Ms Nichols that an experienced child care person such as the applicant should have been able to handle such a situation without difficulty. 115 In summary it is my finding that it was the applicant's lack of supervision that led to Nathan leaving the Centre without authority on the afternoon of 21 February 2006. 116 The respondent was criticised for requiring the applicant to complete a statement concerning Nathan's exit on 22 February 2006. Medical evidence shown only to the Commission, confirm that the applicant had been that morning to visit her doctor concerning an eye complaint. The applicant stated that whilst the statement she completed that day was accurate, she would have included other matters including that the hallway gate being open. From the applicant's point of view, the hallway gate being open was a critical issue. I find it most difficult to accept that the only reason the applicant failed to express that the hallway gate was open was because of her sore eye. Taking into consideration the applicant's comments in her phone call to Ms Reilly the previous night when she could not remember whether the hallway gate was open and other witnesses not seeing it open on that day or hear it being slammed shut, it would be reasonable to conclude that the hallway gate was closed on the afternoon of 21 February 2006. The other aspect raised by Mr Roser was that the applicant could have raised in greater detail how upset she was on the night of 21 February at home, as a consequence of Nathan leaving the Centre. It is my finding that it was reasonable for Ms Reilly to require the applicant to complete a statement on 22 February, whilst the events of the previous day were fresh in her mind. 117 On the day of the disciplinary hearing the applicant brought her friend Ms Amos to be her support person. She had been advised of the hearing the previous day. Mr Roser was critical of the respondent in that Ms Amos was not allowed to be the applicant's support person because she had a child that attended the Centre. The applicant did readily accept Ms Reilly as an alternative as the applicant did express that she had been fair in her dealings with her. In studying the evidence given and the emotion of both the applicant and Ms Reilly towards each other, I did not perceive any negativity. No evidence came before the Commission concerning any inappropriate actions or comments made by any person who attended that meeting on 2 March 2006. It would seem that the meeting was carried out in an appropriate civil manner. During the meeting only the applicant and Ms Johnston spoke. Whilst having Ms Reilly as the applicant's support person on that day was not ideal, it is my finding that it was not fatal to the respondent's defence. 118 At that disciplinary hearing on 2 March 2006, the respondent's representatives had read the statements of various employees prior to speaking to the applicant so that the could get an understanding of what had happened. Mr Roser was critical of the respondent's investigation of the incident and stated that the respondent should have interviewed Mrs Blackadder. The evidence from Ms Reilly was that she spoke with Mrs Blackadder on the following day, 22 February, and was told that she had questioned Nathan, and was satisfied that her other son Damien had not been involved. Mr Roser was also critical that two of the witnesses in that meeting Ms McIver and Ms Te Heu Heu Tukino stated in evidence, that the applicant showed little or no remorse as to what had occurred and that the applicant stated that she worked to the best of her ability and made a response to the effect of that she "doesn't have eyes in the back of my head". Mr Roser was of the view that this question of not showing remorse should have been put to the applicant. In listening to the evidence it was the Commission's view that this collective observation by the respondent's representatives of lack of remorse by the applicant, was arrived at after the disciplinary hearing had taken place. I can understand that the comment made by the applicant that she "does not have eyes in the back of her head" would not have been helpful to her cause when control and supervision of young children is fundamental in the child care industry. Mr Roser was also critical that the applicant was the only employee who had been disciplined out of the incident. In my view the applicant at the time was the carer of Nathan and was the most highly qualified. I do not accept that Ms Call should in some way be subject to criticism when at the time of the incident she carrying out other duties in another area of the Centre. With respect to Ms Baez, she had been advised by Ms Hartog at about 5.00pm that she was not needed out in the backyard and had then gone inside and carried out work in the laundry and then the kitchen. 119 On 17 March 2006 the respondent filed a Notification Form (Ex8) to the NSW Ombudsman. It was the respondent's submission that this was done in accordance with Section 39(1) of the Commission for Young People Act, 1998. In their view they were required to notify. 120 It was Mr Roser's submission that the respondent in filing the notification misinterpreted the legislation and therefore was wrong in notifying the NSW Ombudsman of a reportable offence, that of the termination of the applicant as a consequence of Nathan leaving the Centre on 21 February 2006. The Type of reportable conduct alleged was under the sub heading of Neglect with the Supervision box being ticked. The same was completed under the heading of Allegation 1: category of reportable conduct. Under the sub heading of Description of reportable allegation: Lack of supervision of child allowed him to leave the centre and walk home. It was his submission that the disciplinary proceeding that took place on 2 March 2006 was not a "relevant employment proceeding" and the incident itself, the criteria for a Category One notification were not present. He stated that because the child did not come to any harm then it is not reportable conduct. Neglect as defined must have consequential harm. If there is no consequential harm, then you do not have reportable conduct. What occurred on 21 February didn't satisfy the statutory criteria both in relation to reportable conduct and it was not a relevant employment proceeding. 121 In written submissions Mr Lippett submitted that the Commission did not have the jurisdiction to make an Order directing the respondent to take action to remove the notification. He stated that the Commission's powers in unfair dismissal cases are expressed in section 89 of the Act. The notification by the respondent in accordance with the Children and Young Peoples Act did not form part of the dismissal. It occurred after the termination of the applicant. In final submissions Mr Roser was asked the following question from the Commission. Q. All right . Okay. I think it's in Mr Lippett's submissions that he queries whether this Commission has the jurisdiction to reverse what has occurred. Roser: There is no doubt that with the greatest respect, he's right. 122 Section 89 of the Act only provides the Commission with the power to Order an employer to reinstate, re-employ, award back pay, continuity of employment or compensation. 123 I agree with the submissions of Mr Lippett and it is my finding that this Commission does not have the power to Order the respondent to remove the notification. An application made directly to the Ombudsman by the applicant to seek a review and removal of the notification may be of greater value. 124 In summary it is my finding that as a consequence of the inadequate level of supervision by the applicant of Nathan Blackadder he was able to leave the Centre. I have already previously stated in this decision, the degree of seriousness and high degree of danger that existed as a consequence of a 3 year old child leaving the Centre and walking home alone. In my view, close supervision of very young children must be a fundamental principle in the child care industry and the fundamental responsibility for a child care worker. 125 It is therefore my finding that the termination of the applicant was neither harsh, unreasonable or unjust. This application is therefore dismissed and the matter is now concluded. D. RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.