Industrial Relations Commission of New South Wales CITATION: NSW Independent Education Union and Woodenbong Preschool Kindergarten [2009] NSWIRComm 1002 APPLICANT PARTIES: NSW Independent Education Union o/b Ms C Reid RESPONDENT Woodengong Preschool Kindergarten Incorporated FILE NUMBER(S): 1372 of 2008 CORAM: Ritchie C Claim for unfair dismissal Applicant longterm Director of preschool Terminated for serious misconduct without notice. Director failed to report in a timely manner two incidents to DOCS and the general committee and breached confidentiality. Two incidents occurred between three children aged 3and 4 years at preschool. CATCHWORDS: Incidents witnessed by teachers and reported to Director. Director sought to gather facts, discussed with teachers,researched issue. Reported the incidents to DOCS in an informal manner a few days later and formally 8 days later. Commission found that Director had complied with the Children and Young Persons Act in notifying DOCS as soon as practicable. Commission found that Director not bound to advise General Committee. Committee set policy Breach of confidentially did not amount to serious misconduct. Reinstated Director with backpay. LEGISLATION CITED: Industrial Relations Act 1996 Children and Young Persons(Care and Protection ) Act, 1998 Busway v Johnson (1994)55 IR Electricity Commission of NSW t/as Pacific Power v Crump (1993) 48IR Metropolitan Meat Industry Board v Australian Meat Industry Employees Union,NSW Branch (1973) Ar NSW 231 CASES CITED: Franklins v Webb (1996) 72 IR North v Television Corporation Ltd (1976) 11AR Laws v London Chronicle (Indicator Newspaper) Ltd (1959) 2 allER 285 Day v Lumley Life Limited (1999) 90 IR70 Bi-Lo Ltd v Hooper (53IR224) HEARING DATES: 17/12/08, 18/12/08 DATE OF JUDGMENT: 28 January 2009 APPLICANT Mr I Taylor of Counsel LEGAL REPRESENTATIVES: Respondent: Mr M Young of bourke love mccartney young DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 28 January 2009 Matter No IRC 1372 of 2008 IN THE MATTER OF: New South Wales Independent Education Union (on behalf of Christine Reid) and Woodenbong Pre-School Kindergarten Application by New South Wales Independent Education Union on behalf of its member Christine Reid re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2008] NSWIRComm 1002 Background 1 An application for relief in relation to unfair dismissal was filed by the New South Wales Independent Education Union (the applicant) on behalf of its member Ms Christine Reid on 19 August 2008 against Woodenbong Preschool Kindergarten Incorporated (the respondent). The township of Woodenbong is located approximately 100 kilometres north of Lismore with a population of some 400 people. 2 Ms Reid had commenced employment with the respondent in 1982 and held the position of Teacher/Director when terminated by letter on 29 July 2008. With respect to her final termination quantum it was confirmed by the respondent's legal representative that there was no sum in lieu of notice paid. 3 Conciliation was held on 12 September 2008 but was unsuccessful and therefore, directions for the filing and serving of evidentiary material were provided to the parties. 4 The hearing of the matter was held in Lismore on 17 and 18 December 2008 with the determination being reserved at the end of proceedings. 5 During the hearing of this case the children involved in the two incidents that took place on 26 March 2008 were described as C1, C2 and C3 for confidential reasons. In this decision I retain such descriptions. Case for the applicant. 6 Ms Reid had been a long-term employee of the respondent when she was terminated by an unsigned letter, but with the stamp of the Woodenbong Preschool Kindergarten Inc Management Committee at the bottom of the letter, dated 2 July 2008 received by Ms Reid on 29 July 2008. The letter referred to an incident that occurred at the preschool on Wednesday 26 March 2008. I should note that the respondent stated that the date of 2 July was a misprint and should have read 25 July 2008. I accept this submission. 7 As the preschool did not operate five days a week Ms Reid position of Teacher/Director was part time. At the time of termination she was working three days a week for a total of 21 hours and received $1458.26 per fortnight. 8 Ms Reid stated that post her termination she would have earnt approximately $500 from a small craft shop she runs with her husband and some home cleaning work. 9 She stated that the preschool is run by a voluntary Management Committee, many of whom children attend the pre school. She also stated that she was active in the local community holding voluntary positions in various organisations. She has also attended training programmes to maintain her professional development. 10 In her written statement Ms Reid said that on 26 March 2008 she left the pre school at around 9.30am to attend an off site meeting at Bonalbo that was to commence at 10.30am. Whilst she was absent the usual practice was for Ms Linda Jardine to be in charge. Ms Reid said she returned to the preschool at approximately 2.30pm and advised the other staff that she had returned. 11 By about 3.30pm all the children had been collected. Two employees Linda and Eloise then showed her a hand written note of two separate incidents that had involved C1 and two other children C2 and C3. One incident had been witnessed by a volunteer Ms Kelly Mundine, and the other by Ms Linda Jardine. Discussion took place between the three women concerning abuse indicators and sexualised play. The two incidents that had occurred that day was the first time any staff had witnessed this type of behaviour from C1. The three women then discussed other matters concerning C1 and the possible need to contact DOCS for a report regarding their suspicions in relation to C1. 12 Ms Reid stated that it was her practise to monitor the children in the bathroom if more than one child is in there or any child has been has been in there for some time. 13 Ms Reid said that she spoke to Robyn on the following Friday 28 March 2008 when both were at work and spoke to Kelly when she was next at work. She was seeking to gather extra information. She told them to monitor C1 to ensure there was no exposure of any other children to similar incidents. She said they then discussed the need to devise a new report form to record any future incidents. 14 At the staff meeting on 31 March 2008 the staff discussed the incidents and devised a new generic form that could be used for any behaviour/incident that may occur in the future. General discussion took place with members of staff speaking on the sexual assault training they had received and a course that had been given by Ms Emma Jeffrey. Ms Reid stated that there was no clear information provided in any of the training manuals regarding what to do in relation to notifying parents where other children were involved. She said that it was not felt that the behaviour towards the other children amounted to sexual abuse or assault, but that the behaviour could be an indicator that C1 may be at risk. 15 On the following day there was an unannounced visit to the preschool by Department of Community Services (DOCS) advisors Ms Rutlidge and Ms Welch. It was a routine visit to monitor the centre. Ms Reid said that she spoke to the advisors regarding her intention to report her suspicions about C1 and informed them of the incidents that had occurred on 26 March 2008. The notification to the other parents was also discussed and it was suggested that she ask the case worker the correct protocol at the time the notification was made. Ms Reid stated that no concerns were raised by either of the DOCS officers in relation to her handling of the matter or the manner in which she was addressing her suspicions. 16 Both advisors did state that the parents of C1 should not be informed. 17 Ms Reid said that she read all the information in the "Child Protection Folder" at the centre and the current policy at the centre. In her view neither documents gave clear directions. She said she also read the information provided by the school and the DOCS Inter-agency Guidelines prior to making the call to DOCS. 18 Ms Reid stated that she had sought to contact DOCS whilst at home but did not have all the information at hand and it was difficult at work when the office was not being used and therefore confidentiality was at risk. Both staff who witnessed the incident involving the other two children had stated to Ms Reid that the incidents were very short and had been dealt with quickly and in a low key manner. Her primary concern was that of the behaviour of C1 and that her behaviour was a possible indicator of a child at risk of harm and that something may have been happening to her outside of the pre-school environment. 19 On 9 April 2008 Ms Reid phoned DOCS helpline for mandatory reporters to report her suspicions in regard to C1 being a child at risk. All information was given to DOCS. Ms Reid was advised to speak to both of the other mothers in person and to be prepared for the "fall out". 20 The mother of C2 was the Vice President of the Management Committee of the respondent. She also worked at the Woodenbong Central School. Ms Reid contacted this mother and spoke to her for about one hour. 21 Whilst Ms Reid sought to contact the mother of C3 by phone on a number of occasions she was unsuccessful. This child came to the preschool by bus so Ms Reid did not have the opportunity to see the mother of C3 on a daily basis. 22 On 11 April 2008 which was the last day of term the mother of C2 contacted the administrative assistant Ms Marian McKey to advise that she wished to speak to all the staff at 3.00pm that day including Robyn who was sick at home. At the meeting she advised that both she and her husband were very unhappy with the way the incident had been handled and that she should have been told on the day that it occurred. She said that she had spoken to DOCS and to the Management Committee President about the incident. Discussion also took place on the necessity to speak to the mother of C3. It was decided that Ms Reid and Robyn would go out to her home and see her early the following week. 23 On that day when Ms Reid was about to go and see the mother of C3 she received a phone call from the President of the Management Committee who directed her to not to go and see C3's mother. Ms Reid was advised that the Management Committee would handle it. 24 During the holidays DOCS contacted Ms Reid to ascertain the whereabouts of C1 and the family. 25 On 23 April 2008, the President of the Management Committee, Ms Sarah Downham called Ms Reid to organise a meeting to discuss with her the incidents of 26 March 2008. Ms Reid was advised that the mother of C2 had lodged a formal complaint to the management committee. It was then suggested that Ms Reid go and speak to the mother of C3 when school returned. 26 On 29 April 2008 Ms Reid and Ms Jardin spoke to C3's mother. C3's mother had received a phone call during the holidays from Ms Downham advising her that an incident had taken place and that she should call DOCS for further information. Ms Reid said that all the questions asked by C3's mother were answered. 27 On Friday 16 May 2008 Ms Reid was advised by Ms Downham that after seeking advice from DOCS Country Children's Services (CCSA) and legal advice, that the management committee had made a decision to terminate her employment, but that she could resign by Monday before the Committee formalised their decision. At that point Ms Reid contacted her union who advised her to continue to go to work. 28 Ms Reid stated that her union organiser contacted Ms Downham and discussed the issue. At the following committee meeting on the Monday 19 May the committee did not move to terminate Ms Reid. 29 Ms Reid said that she believed that the committee received correspondence from DOCS regarding two suspected breaches of the Children's Services Regulations 2004 that arose from the incidents of 26 March 2008. 30 A meeting took place at the Kyogle Shire Council Chambers on 22 May 2008. Present were representatives from DOCS, members of the Management Committee and staff and Ms Reid and Ms Jardine. Subsequent to this meeting the Committee were required to furnish DOCS with further information. Ms Reid stated that she was advised by one of the DOCS officers Ms Jeanette Rutledge that there was no time frame for notification regarding children at risk of harm, only that it should be done "as soon as possible". Ms Reid said that she prepared a response to the information requested and sent a memorandum to the two DOCS officers Ms Jenny Jones and Ms Rutledge. 31 On 16 June 2008 the President of the management committee resigned from her position. A letter apologising to the two parents of C2 and C3 was prepared by the committee, and all staff were asked to sign it. 32 The new Child Protection Policy was prepared in conjunction with a representative from the Management Committee to be tabled at the next Management Committee meeting on 28 July 2008. 33 On the morning of 29 July 2008, Ms Reid collected her mail. Included was a letter terminating her employment effective immediately. To ensure adequate supervision of the children she completed her work for the day. 34 Ms Janelle Lee stated that she had been an employee of the Woodenbong Central School as a teacher since 1992 and a member of the Woodenbong Preschool Kindergarten Management Committee since March 2008. She said she was appointed to the extra ordinary Committee that was convened to address the incident that occurred on 26 March 2008. 35 She was aware that on 1 April 2008 DOCS did a spot check at the preschool and on 9 April 2008 Ms Reid reported to DOCS a matter that had occurred at the preschool on 26 March 2008. 36 Post 9 April 2008 the Vice President of the Management Committee made a complaint concerning the handling of the incident and the delay in reporting the matter. Ms Lee understood that the same person complained to the President of the committee and to DOCS. 37 On 12 April 2008 an extra ordinary Management Committee was held where a further committee was developed out of the general Management Committee. At the time of the incidents there were 10 committee members 6 of which were involved in the extra ordinary committee meeting. At this meeting Ms Sarah Downham advised that there had been a complaint made to DOCS relating to the incidents on 26 March 2008. This complaint had been made by the Vice President of the Committee. Ms Downham said that she had spoken to DOCS who had advised her that it was the responsibility of the Committee to investigate and handle the complaint. Ms Downham had also spoken to CCSA for advice who said that a sub committee should be formed to interview all involved to establish the facts. Ms Downham and Ms Mason (secretary of the Committee) would carry out the interviews. 38 The interviewing of all the persons did take place. 39 A couple of days later the committee reconvened. Ms Lee said that they should seek legal advice. Ms Downham stated that she had received legal advice and that it was not a problem to terminate Ms Reid. Ms Downham said she would seek Ms Reid's resignation prior to the next Management Committee. If her resignation was not forthcoming then her employment would be terminated by the Committee. 40 Prior to the committee meeting Ms Lee said that she rang DOCS and CCSA to complain about the process. It was her view that the Committee was too close to the situation, given that the complainant was both a parent and Vice President of the Committee as well as the relieving Deputy Principal and direct supervisor of two of the extra ordinary Committee members as well as an executive to her. She also believed there was a lack of clear guidelines in the preschool's child protection policy, DOCS and other Government information and guidelines for dealing with this sort of incident. 41 Ms Lee said that she spoke to Ms Rutledge from DOCS on 19 May 2008 who said words to the effect "I do not think that Christine's conduct is serious enough to warrant dismissal." This view had been already given to Ms Downham by Ms Rutledge along with other alternatives. Ms Lee said that Ms Rutledge could not do anything herself but suggested that the grievance procedure of the preschool be followed. She also suggested that the use of a mediator and a counsellor to assist. Ms Rutledge later rang back with a list of mediators. 42 Ms Lee said she also rang CCSA where she expressed similar concerns over the process and the conflict of interest that existed between various committee members and the Vice President of the committee in their outside employment at the school plus the lack of clear guidelines in the Preschool's child protection policy, DOCS and other Government information and guidelines. 43 Ms Lee stated that the Vice President of the Committee had on several occasions spoken to her at school stating that Ms Reid should be terminated. 44 Ms Lee said she attended a meeting at the Kyogle Council Chambers on 22 May 2008. After Ms Reid and Ms Jardine had left the meeting the option of using a mediator was discussed but nothing came of it. 45 Ms Lee stated that another meeting was held on 18 June 2008 to discuss the legal advice Ms Downham had received. Present at this meeting was the Vice President. 46 As a consequence of an email received from DOCS outlining the discrepancies in some of the preschool's policies and as the President of the management committee had recently resigned Ms Lee said that she completed the work to address the issues. She also drafted letters to the parents of C2 and C3 apologising for the incidents. She sought confirmation of the appropriateness of the contents of the letters by an appointment with Legal Aid in Lismore on 17 July. Legal Aid also advised that dismissal of Ms Reid was not the appropriate pathway. 47 Ms Lee stated that a meeting was held at lunchtime on 25 July, which resulted in a termination letter being sent to Ms Reid. Ms Lee was not told of this meeting as she was at another school that day. 48 There was a General Committee meeting held on the following Monday. No mention of the termination of Ms Reid was made. Ms Reid received her letter the following day. 49 Ms Linda Jean Jardine stated she has been employed as a child care assistant at the respondents preschool since 1991. 50 She stated she witnessed one of the incidents in the bathroom between two of the children on 26 March 2008. On reaching the bathroom she found both children on the floor in the corner with one child lying on top of the other with both hands down the front of the other child's pants. She said she spoke in a calm voice to the two children and asked them to return to the other children. Neither of the children appeared to be harmed or distressed. She then advised the other staff of what had happened. 51 When Ms Reid returned to the preschool at approximately 2.30pm she was told of the incident. The matter was discussed with other staff still in attendance after school and it was learnt that another incident had occurred that day. Ms Reid said she would have to speak to the other witness, a volunteer named Kelly prior to speaking to DOCS. 52 On 28 March the staff discussed the need to devise a new report pro forma to record any future incidents. This took place on the following Monday when all staff would be in attendance. 53 Approximately 5 weeks after the incident Ms Downham and Ms Mason the Secretary of the General Committee spoke to Ms Jardine about the incident and the reaction of Ms Reid. The meeting lasted about ten minutes. 54 On 22 May she attended a meeting at Kyogle with Ms Reid, some Committee members and DOCS representatives. She and Ms Reid were asked to leave before the meeting finished. 55 On 29 July 2008 Ms Reid told Ms Jardine that she had received a letter terminating her services effective immediately. 56 On 30 July Ms Jardine was asked by Ms Downham to step into the Director's position on a temporary basis. Ms Jardine said she did not feel comfortable about taking on the responsibility. Since Ms Reid's termination, no one has been appointed as the Director or authorised supervisor at the preschool. 57 In final submissions for the applicant Mr Taylor stated that Ms Reid had been terminated for serious misconduct which resulted in instant dismissal without notice. He listed the reasons for termination as delay in advising DOCS and the Management Committee of the incidents of 26 March 2008 and the breach of confidentiality. He posed the question of did the delay from 26 March to 9 April in advising DOCS constitute serious misconduct notwithstanding that Ms Reid spoke on the subject matter to two of the officers of DOCS when they visited the preschool on 1 April? In his view it did not. With respect to the failure to advise the Management Committee of the two incidents, the evidence of Ms Downham did not support this reason for termination and in his view there was a fundamental misunderstanding of the distinction in roles between Ms Reid and the Management Committee. The failure of Ms Reid to tell the parents of C2 and C3 was not mentioned in the termination letter or Mr Young's opening address and therefore not part of their case. With respect to the breach of confidentiality it was Mr Taylor's submission that if the breach was by Ms Reid advising the mother of C2 who held a senior position in the central school and with the preschool's General Committee and therefore would have a clear understanding with respect to the duties of confidentiality, then the breach was not a significant one. In summary the termination was unjust as she was not guilty of serious misconduct. It was also harsh in the circumstances due to the consequences of the dismissal to the applicant both from an economic and personal view. Mr Taylor also stated that in accordance with the constitution of the respondent, only the Management Committee has the power to make decisions. There was no decision by the Management Committee to terminate Ms Reid or to approve the termination of Ms Reid or to pass a resolution for a sub committee to have the power to terminate Ms Reid. It was the submission of Mr Taylor that procedural fairness was absent in the termination of Ms Reid. Prior to 19 May 2008 Ms Reid had not been advised what she had done wrong, advised that she had the opportunity to respond and be given the opportunity to respond. Mr Taylor said that Ms Reid seeks to be reinstated with backpay. Case for the respondent. 58 Ms Sarah Maree Downham gave evidence for the respondent. Ms Downham is the present President of the Management Committee of the respondent has been since 2006. 59 Ms Downham stated that she first became aware of the incident involving children identified as C1, C2 and C3 on 9 April 2008 when the Vice President of the Management Committee advised her. 60 On 10 April 2008 as a consequence of this conversation Ms Downham called an extraordinary meeting of all members of the Management Committee. She purposely did not call Ms Reid as one of the issues as she saw it, was how Ms Reid had been handled the issue. On 11 April at 8.00am Ms Downham contacted DOCS to make a mandatory report. She gave what information she had been told by the Vice President to DOCS. 61 A meeting was held on a Saturday 12 April 2008 at 4.00pm and was attended by six persons. This group of people became the " Investigative Committee". This meeting was also attended by the Vice President whose child had been involved in one of the incidents. She addressed the Investigative Committee and expressed her concerns then left the meeting. 62 The Investigative Committee resolved to contact DOCS which Ms Downham did on 14 April 2008. She was told by Ms Rutledge that as the employer she had to investigate the incident and reassess its policies and contact CCSA. She contacted CCSA and outlined the incident. Ms Naomi Parry of the CCSA believed that Ms Reid's conduct was seriously flawed and that the preschool as an employer had an employee incident that warranted further consideration. Ms Downham also contacted the NSW Ombudsman and formally reported the incident. 63 On the same day she received a phone call from Ms Parry who outlined a strategy for the Investigative Committee to put in place. In essence Ms Downham and Ms Mason were to interview all relevant parties involved and come up with a factual account of what had occurred. A record of the interview was to take place. After the interview process had been completed the Investigative Committee was to assess what Ms Reid should have understood about the reporting process; who should legally do the reporting and whether that's been made clear; has the Committee met its obligations in obtaining adequate training for its staff in child protection and is our child protection policy adequate? Once that was done Ms Downham was to contact CCSA to obtain further advice. Other members of the Investigative Committee were advised of what CCSA had stated and were in agreement. 64 On 15 April 2008 Ms Downham said that she received a phone call from Robyn Davies, an employee of the preschool, who advised her that Ms Reid wanted her to accompany her to see the parents of C3. This was the first time Ms Downham was aware of the second incident in March and also that the parents of C3 had still not been told. As a consequence of this information Ms Downham contacted CCSA again and was told to stop Ms Reid from contacting the parents of C3 and that she would speak to the parents. Ms Downham then contacted Ms Reid and Ms Reid agreed not to see C3's parents. Ms Downham also told Ms Davies not to speak to the parents. Ms Downham then contacted the parents of C3 and spoke with the mother on 15 April 2008. Ms Downham then reported to DOCS the second incident of 26 March 2008 after speaking with Ms Davies and CCSA. Ms Davies also reported the incident to DOCS. 65 On 16 April 2008 Ms Downham and Ms Mason spoke with the mother of C2. 66 On 23 April the two ladies met with Ms Reid and discussed the incident. 67 On 24 April 2008 Ms Downham and Ms Mason received a phone call from the mothers of the two children C2 and C3. There was a desire by the mother of C3 to speak to the General Committee concerning the delay in she being notified of the incident. After taking advice from CCSA Ms Downham she spoke to the mother of C3 and dissuaded her from coming to the next meeting. 68 At the next meeting of the Management Committee on 1 May 2008 it was determined to interview Ms Jardine which took place on 5 May 2008. After that interview another meeting of Investigative Committee was held where it was determined to stand Ms Reid down. After another discussion with CCSA it was determined not to stand down Ms Reid but to seek legal advice. 69 At another meeting of the Investigative Committee the future of Ms Reid's employment was discussed and by majority it was decided to terminate her services. 70 On Friday 16 May 2008 at approximately 4.30pm Ms Downham spoke to Ms Reid and advised her that she was to be terminated due to breaching confidentiality and failing to report to the parents and DOCS in a timely fashion. She offered Ms Reid the opportunity to resign and gave her the opportunity to consider such an action. She was told to go away and have a think about it and get back to me. She did not recall giving Ms Reid a deadline of the following Monday to reply. 71 On the following Monday there was a meeting of the Management Committee and not the Investigative Community. On the same day she received a phone call from Ms Rutledge from DOCS who was aware of the decision to terminate Ms Reid and the seriousness of the action and its possible consequences. Later that day Ms Downham received a phone call from an officer of the Independent Education Union who stated that an unfair dismissal claim would be filed if Ms Reid was terminated. She also received a phone call from Ms Rutledge who sought a meeting in Kyogle on 22 May to go over the breaches from the 1 April 2008 visit and other issues. 72 On 16 June 2008 Ms Downham resigned as President of the Management Committee during a Management Committee meeting. She at the time did not give reasons. On 28 July 2008 Ms Downham was re elected as President. In her absence the Vice President was the Acting President of the Management Committee and Ms Mason was the Acting President of the Investigative Committee. 73 Ms Downham stated that from the meeting on 22 May until a meeting convened on 25 July 2008 by Ms Mason, Ms Reid's employment had not been discussed at a meeting of the Investigative Committee. The reason for the that meeting was to discuss a proposed letter to be sent to Ms Reid terminating her employment. Present at this meeting were Ms Downham, Ms Mason, Sue Leonard, Chris Leonard and Tania Fleming by phone. There were members of the Investigative Committee who were not present at that meeting. This meeting determined to terminate the employment of Ms Reid. A letter to that effect was mailed to Ms Reid's home address. In Ms Downham's view Ms Reid had been given the opportunity on 16 and 22 May to explain her actions. Attached to Ms Downham's statement was a letter of complaint from the parents of C3 about the time delay in notifying them of the incident and the subsequent lack of trust they now have in Ms Reid and a letter from some of the aboriginal parents who would withdraw their children from the preschool if Ms Reid was successful in being reinstated into her former position. 74 Ms Downham stated that three persons who were voted in on the Management Committee at the Annual General meeting failed to attend any meetings. Another person irregularly attended meetings. Another person who joined the Committee later in the year (around May) attended Committee meetings. In Ms Downham's opinion the people who attended the meeting of 25 July were representative of the full committee of the preschool. They were effectively the Management Committee of the preschool and to have shared that information with other committee members would have been a breach of confidentiality. 75 Ms Robyn Anne Evans stated that she had been employed by the respondent since 2002 as a teacher. She said she was on duty on 26 March 2008 when Linda Jardine spoke to me describing what she had witnessed between children C1 and C3. The issue was discussed between the two teachers and later in the day a volunteer named Kelly told Ms Evans that she had witnessed an incident between C1 and C2. She told Kelly to speak to Linda. It was agreed that the two incidents should be documented and Ms Jardine wrote down what was witnessed on a piece of paper. 76 Ms Evans stated that the behaviour of C1 had been discussed on a number of occasions before amongst the teachers. 77 At a meeting of teachers on 31 March 2008, the incidents of 26 March were raised and Ms Reid said that she would get everything together and notify DOCS. Ms Evans said that she provided Ms Reid with documents she had in her possession from a recent child protection training course. There was also information from DOCS and CCSA. 78 On 10 April 2008 Ms Evans met with the Vice President of the Management Committee who visited her house because Ms Evans was ill. During that meeting the Vice President showed a report in relation to the incident of 26 March. On the following day Ms Evans spoke with Ms Reid and was surprised to find out that the mother of C3 had yet to told of the incident. On that day Ms Evans recounted to Ms Downham what was happening. It was Ms Evan's view that what was witnessed on 26 March 2008 amounted to an assault. Ms Reid also stated that some aboriginal parents had told her that if Ms Reid was reinstated they would not send their children to the preschool. 79 Ms Sue-Ellen Vallance gave evidence that she works for the respondent as the office clerk. Ms Vallance gave evidence of the means by which the respondent operates with respect to funding and the method by which funding is allocated. In her view a drop in aboriginal children attending the preschool would lead to a drop in funding through the Schools in Partnership Program (SIPPS). 80 In final submissions on behalf of the respondent Mr Young did categories the actions of Ms Reid as serious misconduct. The delay in making a report to DOCS, the failure to advise her employer of what took place on 26 March 2008 and the clear concerns about C1. The failure by Ms Reid to notify the parents of C2 and C3 in a timely fashion was not stated by the respondent as a ground for termination. Mr Young also confirmed that the issue of poor performance was not a ground for dismissal. The persons who made up the Investigative Committee were also the core of the Management Committee. Therefore the decision of the Investigative Committee was a decision of the Management Committee. Whilst there were other persons who were on the Management Committee they were not overly active. The Investigative Committee met on a number of occasions and also had phone conversations over an extended period coming to grips with an issue that they had not had to deal with before. It was Mr Young's submission that it would not be practical to reinstate Ms Reid to her former position. The preschool has a significant role in the education of the young in the community particularly targeting improving the outcomes of indigenous children. There was evidence that such children would not attend the preschool if Ms Reid was reinstated. Consideration and Decision. 81 I believe it appropriate to express the contents of the letter terminating the services of Ms Reid. 2nd July,2008 Ms Christine Reid Grahams Creek Road Woodenbong NSW 2476 Dear Ms Reid Termination of Employment with Woodenbong Preschool Kindergarten Inc I refer to correspondence and conversations with you during May and June 2008. As you are aware, on or about 26 March 2008 an incident occurred at the Kindergarten where two children were sexually assaulted by a third child. That incident was not reported to management, the management committee or to the Department of Community Services 9DOCS). The Children and Young Persons (Care and Protection) Act 1998 ( the Act ) imposes obligations on people working in the children's services sector and particularly those people who hold management positions in organisations that deliver children's services. Those obligations include obligations to report to DOCS in circumstances where a child is at risk of harm or has suffered harm (section 27). Section 23 of the Act defines a child to be at risk of harm in circumstances where the child has been, or is at risk of being, physically or sexually abused or ill treated. It is a criminal offence to fail to make a report. During the course of correspondence between the Kindergarten and you, over the past few months, you have been made aware not only of the concerns of the kindergarten but also the concerns of DOCS. That concern includes, but is not limited to, the failure to report the incident to the management of the kindergarten or DOCS. This is a serious and fundamental breach of your employment contract. The kindergarten regrets to advise you that your employment has been terminated and you are dismissed from your position as Director of the Kindergarten. The decision is effective immediately. Please deliver to the Kindergarten all documents and records relevant to your employment which are being held by you. A cheque in payment of your accrued entitlements is currently being prepared, having regard to your termination date. Yours faithfully Woodenbong Pre-School and Kindergarten Management Committee. 82 Ms Reid was terminated without notice. She did not receive any payment in lieu of notice. She was terminated for serious misconduct. 83 It should be noted that it is not the role of this Commission to replace an employer's decision to dismiss an employee with that of its own (see Busways v Johnson (1994) 55IR 255 at 261). The duty of this Commission is to make findings as to whether a particular dismissal was "harsh, unreasonable or unjust" within the meaning of the Act in accordance with the relevant tests established by the authorities of the Commission. 84 During the hearing of this matter I raised the question for consideration as to did the punishment fit the crime ? In considering this question, I have had regard for the decision in Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296: 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 Australian 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 bee too harsh a consequence. See also Byrne & Anor v Australian Airlines (1995) 61 IR 32; Wells v Commissioner of Police (2000) 100 IR 106 at 118; Busways v Johnson , 55 IR 255; 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; Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis and TNT Australia Pty Limited, trading as TNT Express ; Police Association of New South Wales on behalf of Adam Tregonning and New South Wales Police Service and Little v Commissioner of Police No 2 [2002] NSWIRComm 52. As has been previously observed, summary dismissal for misconduct can have serious and deleterious implications for an employee. This notion was best expressed in Franklins v Webb (1996) 72 IR 257. 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. See also comments in Standley v Electronics Boutique Pty Ltd (unreported Sams DP, IRC4516 of 1999, 18 March 1999) and Hill v Department of Juvenile Justice [2000] NSWIRComm 128. In my opinion, a valid summary dismissal for misconduct needs to be accompanied by the conduct being "wilful" such as to constitute a repudiation of the contract of employment by the employee. I rely on the following authorities in this regard: In North v Television Corporation Ltd (1976) 11 ALR 599 where 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). In Day v Lumley Life Limited (1999) 90 IR 70, Hungerford J describes 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. See also Blyth Chemicals Limited v Bushnell 49 CLR 66 and Hunt v Hornsby Shire Council , [2001] NSWIRComm 242. 85 The extent to which an employer must prove the misconduct prior to any summary dismissal was carefully considered by the Full Commission of the Industrial Commission of South Australia in the case of Bi-Lo Ltd v Hooper(53IR 224 at 229): Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it, if it demonstrates that in so far as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at the time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable. 86 In his opening statement Mr Young for the respondent stated that in light of the seriousness in which the legislation takes the risk of harm, the circumstances that arose on 26 March an immediately thereafter in the kindergarten's case, that was alone a sufficient breach of trust between the employer and the employee that it warranted dismissal. The object of the legislation was to provide care and protection as necessary for the safety, welfare and wellbeing of the children. There was a clear requirement as per her contract of employment for Ms Reid to communicate to management what had occurred. 87 Factually there is little difference between the parties. Two separate incidents occurred on 26 March 2008 involving C1 and two other children C2 and C3. As I understand the children were aged 3 to 4 years of age. The witness to one of the incidents reported as to what she had seen to Ms Reid on the afternoon of the same day when Ms Reid returned to the preschool. 88 The witness to the other incident, Ms Mundine who was a volunteer, had already left for the day by the time Ms Reid had arrived at the preschool and therefore did not get to speak to Ms Mundine until the next time she was at work which was a couple of days later. I put to Mr Young and he agreed with my summary, that the failure of Ms Reid to report the incidents of 26 March in a timely fashion or as soon as practicable to DOCS and the Management Committee, that alone was sufficient for the applicant to be terminated. 89 Under the Children and Young Persons (Care and Protection) Act,1998 section 27 Mandatory Reporting is expressed in part in the following form: (2) If (a) a person to whom this section applies has reasonable grounds to suspect that a child is at risk of harm, and (b) those grounds arise during the course of or from the person's work, the person must, as soon as practicable , report to the Director General the name, or a description, of the child and grounds for suspecting that the child is at risk. Maximum penalty : 200 penalty points. 90 Therefore there is a requirement to make a report "as soon as practicable". In my view to consider this term "as soon as practicable" and determine whether a person has complied with this legislation would require the consideration of the facts of each case. The legislation in my view has been expressed not in finite terms eg. within 14 days of the incident etc.., but in such terms to allow for each incident to be considered according to the facts surrounding the matter. 91 Ms Reid stated that notwithstanding her 26 years of experience in preschool education, she had never had to confront this type of issue. Meetings then took place between Ms Reid and other preschool teachers on 28 and 31 March 2008 discussing the incidents and a consideration of what reading material and policies that the preschool had that would assist in formulating the action that was to be taken. It is clear from the evidence from witnesses to those meetings that the contacting of DOCS by Ms Reid was going to take place. On Tuesday 1 April 2008 officers from DOCS made a surprise visit to the preschool. During that visit Ms Reid stated that she spoke to the officers regarding her suspicions about C1 and informed them of the incidents that had occurred on 26 March. This evidence was not challenged. Ms Reid said in evidence that it was her intention to call DOCS on her day off( she worked a three day week) as it would be quiet and she would not be disturbed but she then realised that she did not have all the details such as current address and phone numbers. She also stated that it was difficult to find the time at work when the office was not being used by other persons, making a confidential phone call difficult. On 9 April 2008 Ms Reid contacted DOCS and advised of the incidents and her suspicions concerning C1 being a child at risk. Names and addresses of the other two children were provided. 92 As expressed above in the Children and Young Persons (Care and Protection) Act,1998 the requirement is to report as soon as practicable . Taking into consideration what actions Ms Reid did take in informing DOCS officers on 1 April of the issue, of interviewing witnesses, discussions with fellow employees of the issues and the gathering and reading of the available material on the subject, it is my finding that the length of time taken to report the incidents fell within the requirement to report as soon as practical. In arriving at this finding I have also taken into consideration the lack of experience Ms Reid had in handling such an issue, the inadequacy of the Child Protection Policy in place and her desire to get such a sensitive decision involving an indigenous child correct. In arriving at the above finding I also find the absence of any wilfulness on the part of Ms Reid. I cannot conclude that by her actions Ms Reid was seeking to repudiate her contract of employment. 93 The other ground that the respondent relied upon to terminate Ms Reid was that she failed to notify the Management Committee of the two incidents. 94 The evidence of Ms Downham in cross- examination on this point I believe is relevant. Q. Now, as I understand the position, is this the case, that you believe Ms Reid should have attended a management committee meeting and told a management committee meeting that two incidents had occurred and explained to the management committee what those incidents were ? A. No Q. I see. You're not the management committee are you? A. No, no, but I could have –If Ms Reid had had an issue or a lack of understanding about what to do, she could have come to me one on one and I could have helped her sought that through. Q. Of course. But I might be wrong, I thought that the pre-school is saying that Ms Reid committed misconduct because she didn't tell the management committee about the incidents. Is that your position ? A. My position is that she should have informed the licensee that the issue had occurred. With that, she could have still done that without breaching any confidence. Q. And the licensee is not the management committee, is it ,it's you? A. It's the management committee. and Q. I just want to understand from your point of view what was her failure. And I think we've got so far as saying that she shouldn't have turned up at the management committee meeting and told them but think you're saying she should have at some point come to speak to you and told you that there two incidents, but not tell you who the children were. Am I following you so far ? A. Yes. Q. And then the next step is –that was appropriate in your view, indeed necessary, indeed serious misconduct not to, because armed with that information, you would then go and tell the rest of the management committee. Is that how it's supposed to work in your view ? A. Yes and Q. Can I put this to you, that as far as the way a preschool should be run-tell me if you agree with this-is that the director as the authorised supervisor has the personal responsibility for the safety of the children. Do you agree so far? A. The authorised supervisor and the licensee, yes. Q. I see. But the management committee are there to set policy, there not there to manage individual incidents involving children, do you accept? A. Yes. Q. And Ms Reid was entirely right to take the view that the management of the incident was a matter for her and DOCS, not a matter for the management committee beyond the question of the drafting of appropriate policies ? A. Had the incident been dealt with correctly, then you are correct, but it wasn't dealt with correctly. and Q. Providing that Ms Reid deals with things correctly, there's no obligation to tell the committee of management. The only obligation is to tell the committee of management of incidents that Ms Reid hasn't handled correctly, is that the evidence? A. Yes Later in evidence Ms Downham in answering a question from the Commission, sought to clarify the above evidence. Ms Downham stated that if Ms Reid had handled the situation correctly there would have been no reason to tell anyone. But as Ms Downham stated that Ms Reid was confused and not sure what to do, then Ms Reid she should have come to see Ms Downham and both could have worked out what the correct thing to do, instead of in Ms Downham's words "to do nothing for nearly two weeks". I do not accept Ms Downham's view that Ms Reid did "nothing for nearly two weeks" and have previously summarised in this decision her actions in the intervening period. If one followed Ms Downham's logic, Ms Reid would not have needed to advise the Management Committee because at no stage did she believe that she handled the incidents incorrectly 95 It is my finding that the failure to advise the Management Committee of the incidents of 26 March 2008 did not equate to an act of serious misconduct. It was the view of Ms Reid that as she was the authorised supervisor, it was her responsibility to act in accordance with the legislation which it has been my finding that she did. If she had only told Ms Downham she would not have told the Management Committee but only one person of that committee. 96 Whilst not included as a reason for termination in Ms Reid's letter of termination, Ms Downham stated that another reason for termination was the breach of confidentiality when she spoke to the mother of C2 and showed her a handwritten report with the name of C1 in view. I accept the submission of Mr Taylor who recognised that the person who was shown the report held a position where she would have a clear understanding of the duties of confidentiality. The action of Ms Reid in showing the report to that particular person was not an act of serious misconduct. 97 The issue of whether Ms Reid received procedural fairness was canvassed by both parties. On 16 May 2008 Ms Reid was advised by Ms Downham that a decision had been arrived at to terminate her services but she could resign if she wished. She was given a few days to consider her position. Other meetings of the Investigative Committee then took place be it face to face or by way of individual phone calls before the confirmation of the termination letter was finalised and posted to Ms Reid some nine weeks after she was told she would be terminated. This was not a satisfactory process. 98 At no point did the governing body of the preschool, the Management Committee clearly define what the issues were that Ms Reid faced and an opportunity for Ms Reid to answer the claims. I do not believe that the meeting that took place on 22 May in Kyogle (with officers from DOCS) fitted such a description. I accept the submission of Mr Taylor that DOCS were seeking to get the two parties together to try and resolve the matter. Ms Reid was talking to DOCS not to the Management Committee. 99 In summary it is my finding that the termination of Ms Reid was harsh, unjust and unreasonable. In coming to that conclusion I must make comment on the environment in which this decision to terminate was arrived at. The Management Committee is a body of volunteers. They are not experienced industrial practitioners and therefore should not be expected to handle such an issue without fault. By this decision I do not seek to criticise any of the members of this body. In fact it was clear that Ms Downham as the President of the Management Committee shouldered a great deal of the work and accompanying emotional worry. It was not an easy position to be in and in my view she sought to do her best. She is an asset to the preschool. 100 The applicant seeks to be reinstated to her previous position with back pay. Argument was heard from both parties as to the practicality of such an action. Ms Reid gave evidence that she believed she could work with the members of the Management Committee whomever they may be. The membership of the Management Committee does change from year to year as preschool children move into primary school. Ms Reid over the 26 years she has worked at the preschool would have worked under many members of such a committee and done so without obvious difficulty. I believe that can continue. Another issue was raised with respect to the ramifications of her reinstatement with respect to the aboriginal community and the subsequent receiving of SIPPS funding. The claim was that parents had a concern that the preschool would not care for their children if Ms Reid remains the Director. I would hope that such parents recognise that Ms Reid has demonstrated a long-term commitment to the aboriginal community. No evidence came before this Commission to suggest that she is not about ensuring the best educational outcome for all children including the aboriginal community. To quote an Australian term I believe parents should give Ms Reid "a fair go". I make the following: ORDER 1.In accordance with Section 89(1) of the Industrial Relations Act (the Act) Woodenbong Preschool Kindergarten Incorporated reinstate within 14 days of the date of this Decision, Christine Mary Reid to her former position on terms not less favourable than those that would have been applicable had she not been dismissed. 2.In accordance with Section 89(3) of the Act, Woodenbong Preschool Kindergarten Incorporated shall within 28 days of this Decision, pay to Ms Reid an amount equal to the remuneration she would have been paid if she had not been dismissed. On the basis that her leave entitlements are recredited, that payment is to be reduced by the amounts paid to her on termination. An amount of $500 should also be deducted from that amount being the amount of money earnt by Ms Reid post her termination. 3. In accordance with Section 89(4) of the Act, the period of employment of Ms Reid with the Woodenbong Preschool Kindergarten Incorporated is taken not to be broken by the dismissal. 4. At Ms Reid's request the Commission orders that the amount to be paid by the Woodenbong Preschool Kindergarten Incorporated pursuant to Order 2 need not be greater than an amount that would leave the Woodenbong Preschool Kindergarten Incorporated with a $1000 cash reserve, after taking into account outstanding income and liabilities. 5. If the Woodenbong Preschool Kindergarten Incorporated wishes to reduce the amount to be paid under Order 2 pursuant to Order 4 it must file a proposed Order specifying the alternative amount to be paid within 21 days. If that proposed order is not consented to by Ms Reid the Woodenbong Preschool Kindergarten Incorporated must supply to Ms Reid details of how much that amount is calculated at least 7 days before the hearing to determine that question. 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.