Unfair Dismissal: Rachna Gulia v Communities@Work Limited

This is another case heard by the Fair Work Commission in relation to the unfair dismissal of an educator by a childcare service. The educator was dismissed after some alleged incidents. While there was no issue of procedural fairness, the Commission did assess the conduct for which the educator was dismissed:

In summary, of the conduct relied upon by the Respondent to dismiss Ms Gulia I am only satisfied Ms Gulia repeatedly called Blake a “baby” for wanting his dummy. Otherwise, I am not satisfied that conduct attributed to Ms Gulia in the allegations took place. While Ms Gulia’s conduct in repeatedly calling Blake a ‘baby’ for wanting his dummy in my view contravenes the Respondent’s Children’s Services: Relationships and Interactions with Children Policy by potentially negatively impacting on his self-esteem, the conduct of itself is not sufficient to provide a valid reason for Ms Gulia’s dismissal. In my view the conduct warranted some lesser form of remedial action, e.g. a written warning or a targeted performance improvement process.
Beyond this I would observe that while the Respondent has a range of policies and procedures in place, what appears to be lacking is any robust process for recording and/or dealing with conduct which is potentially inconsistent with those policies and procedures. The picture painted in this case was one of the Respondent having significant concerns about several aspects of Ms Gulia’s conduct over a period of time which attracted some informal guidance from Ms Paxton but no formal response in circumstances where it was alleged that the conduct persisted or where more serious conduct was alleged to have occurred. In short, in this case no one with any managerial or supervisory responsibility at the Centre or the Respondent’s human resources area appears to have done anything to either escalate issues and/or consider a more appropriate response to address the alleged conduct in circumstances where it appears that informal guidance may not have had the desired effect.(paras.79-80).

The Commission, therefore found:

In summary, I find that there was not a valid reason for Ms Gulia’s dismissal related to her conduct, that a number of criterion in s.387 do not point to Ms Gulia’s dismissal being unfair, that the Respondent’s decision to dismiss her was disproportionate to the conduct which took place, that Ms Gulia’s lengthy and uneventful service with the Respondent is a relevant consideration and that the other factors in s.387 of the Act are either neutral considerations or not relevant in this case. In this case the absence of a valid reason for Ms Gulia’s dismissal outweighs those considerations which do not point to her dismissal being unfair. Accordingly, having regard to the material before the Commission and the factors set out in s.387 of the Act supports a finding that Ms Gulia’s dismissal was harsh because insufficient weight was attached to her lengthy and uneventful service, unjust because there was not a valid reason for her dismissal and unreasonable because it was disproportionate to the conduct which took place. (para.94)

The issue of remedy was deferred to a future hearing.

National Quality Framework Review 2019

The NQF Review have just published a Consultation Summary Report providing a summary of the feedback it received to its issues paper. Almost 1,800 survey responses were received and more than 2,500 people attended face‑to-face consultation sessions. More information on the review is available from the NQF Review website.

In addition, ACECQA have recently published the NQF Annual Performance Report 2019 and its Annual Report 2018-19.

New ECT Requirement from 2020

ACECQA have published in their newsletter a reminder of the requirements that apply from 1 January 2020 requiring services to have a second early childhood teacher or, alternatively, a ‘suitably qualified person’ when 60 or more children preschool age or under are being educated and cared for (see regulations 133-4).

Sydney Childcare Death

ABC Online recently carried a story on the death of a 16 month old child last year.

Education Council Outcomes

The Education Council met on 12 December and issued a communique on its meeting. Some of the issues covered were the Universal Access National Partnership Review; ACECQA Review; Children’s education and care national workforce strategy; National Quality Framework Review; and the Education and Care Services National Amendment Regulations 2019. 

Further analysis of the outcomes can be found on The Sector website.

Unfair Dismissal: Lucinda Vennix v Mayfield Childcare Limited

This is an interesting case heard by the Fair Work Commission in regard to the dismissal of a Centre Manager (Applicant) following a number of incidents. However, the Commission stated that the reason given by the Respondent fell short of a valid reason for immediate termination for negligence and that procedural fairness was not accorded. Although the Commission found that the Centre Manager had been unfairly dismissed it declined to award compensation, as it stated:

I find that in all the circumstances, I do not consider that payment of compensation is appropriate because the Applicant was out of her depth in the role of Centre Manager. While her experience in the sector is substantial, her experience in managing a centre, its liabilities, and responsibilities was not at a standard required by the Respondent. It is evident the Applicant did not have the required competency to perform the role dependably without support by the Respondent.
Given its size and resources, I find the Respondent managed the appointment and employment of the Applicant inadequately. Given the level of experience in the childcare sector and the Applicant’s admission that her priority is her private care obligations, I am of the opinion that there is limited scope that the Applicant would have maintained enduring employment in the role as Centre Manager.
I therefore decline to order any remedy, notwithstanding that I found the Applicant was a person protected from unfair dismissal and had been unfairly dismissed (paras.110-2).

Commencement of SA No Jab No Play Legislation

The South Australian Government has issued a media release in relation to changes to the Public Health Act 2011 which come into effect next year. From 1 January 2020, early childhood services will be required to keep a copy of all approved immunisation records for the duration a child is enrolled in their service.

Latest NSW Prosecutions

The NSW Regulatory Authority under the National Law (Department of Education) has recently published details of prosecutions it has taken over the last five months on its Website. 

A number of the prosecutions occurred in relation to the operation of Family Day Care Service, Joys Child Care. The approved provider, Joys Child Care Limited, and the holding entity of the service, the Chinese Students Association, were each fined $47,500 for providing an education and care service without a service approval and advertising education and care services for a service that was not an approved service. Mr Jan Shang, person with management or control of Joys Child Care Limited and Chinese Students Association, was fined $34,000 for the above offences as well as obstructing an authorised officer, failing to comply with requirements made by an authorised officer and failing to comply with a requirement under section 215.

In addition, the Council of the City of Sydney, approved provider of Ultimo Children’s Program, was fined $10,00 for breach of sections 165 and 167. The facts were that a nine year old child with Downs Syndrome was enrolled at the service. The parents of the child made the approved provider aware of the child’s tendency to abscond. At approximately 5:30pm on 5 February 2018, a parent advised a staff member that she had just seen the child walk through the foyer and leave the service. A staff member immediately went after the child, who was observed on the corner of two streets. The staff member started to run towards the child, which caused the child to start running away from the staff member. The staff member stopped running and the child allowed the staff member to approach and they returned to the service.

Thanks to a blog reader for advising of this update.

Reaction to NSW Proposal to Introduce Quality Star Ratings for Childcare Services

The Sector website have carried a story including reaction to the proposal and The Sydney Morning Herald published an opinion piece on the concept.

NSW to Introduce Quality Star Ratings for Childcare Services

The NSW Department of Education has announced the introduction, from 1 July 2020, of a new star ratings system to provide more information to parents about how services rate under the NQF.

ABC Online published more information on the system on its website.

Cancellation of Child Care Benefit Approval: Nouh Family Day Care Pty Ltd and Secretary, Department of Education

This case involves an application for review, to the Australian Administrative Appeals Tribunal, of the decision by the Commonwealth Department of Education (respondent) to cancel the Child Care Benefit Approval of Victorian provider Nouh Family Day Care Pty Ltd (applicant).

The Department cancelled the approval as it found that Nouh FDC had failed to comply with the requirements of the family assistance law in the following areas:

• fees in excess of maximum hourly rate – Nouh FDC had charged in excess of the maximum hourly fee for care provided to children who were eligible for the GCCB. As such, these sessions could not be considered sessions of care and no amounts of child care subsidy could be paid;
• child swapping – Nouh FDC had reported attendances when no child was eligible. This is because they had been involved in the practice referred to as child swapping where a Family Day Care educator or their partner receives child care subsidies from the Commonwealth for a session of care provided to their own child on the same day that they themselves provide care for another child;
•  children 14 years of age or older or who attend secondary school – under the family assistance law, parents of children who are 14 years or older or who apparently attend secondary school cannot receive Commonwealth child care fee assistance unless specific circumstances apply. As Nouh FDC had submitted insufficient documentary evidence to support that the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015 (“No-One is Eligible Determination”) had been met, with the exception of one child, it had improperly received payments in relation to numerous children who were 14 years and older;
• failure to notify the Department – Nouh FDC had failed to notify the Department of the changes to key personnel or their address within the required 14 and 30 days, respectively;
• suitable person – Nouh FDC was not a “suitable person” to operate a child care service as it had poor governance arrangements and a record of non-compliance with both the family assistance law and the national laws and regulations. (para. 11)

The Tribunal comprehensively assessed the evidence and concluded:

The evidence before the Tribunal establishes a prolonged, repetitive and serious pattern of non compliance by Nouh FDC with its statutory obligations under the family assistance law, and in particular breaches of section 219N of the Old Administration Act. The Tribunal is satisfied that the following grounds of non-compliance had been established:

• overcharging of fees in excess of hourly rates breached section 12 of the Session of Care Determination in relation to the GCCB rate;
• Child swapping breached section 219N of the Old Administration Act and section 10A of the Eligibility Rules;
• Instances of 14 years older/children in secondary school breached section 9 of the No-One is Eligible Determination;
• Instances of an educator being overseas breached section 219N of the Old Administration Act;
• overlapping sessions of care breached section 219N of the Old Administration Act;
• absences before care commenced and after care ceased breached section 10 of the A New Tax System (Family Assistance) Act 1999;
• late attendance reporting care breached section 219N(5) of the Old Administration Act;
• care in own home breached section 11(1)(b) of the Session of Care Determination;
• instances where the CRN of educators were not provided breached the Eligibility Rules; 
• non-compliance with the educator to child ratio breached regulation 124(1) of the National Regulations;
• non-compliance with notification requirements breached section 19(1) and 19(2) of the Eligibility Rules.

Whilst the Tribunal found that Ms Hamieh had attempted to explain how the breaches had occurred and had not shied away from her willingness to adhere to strict compliance with the family assistance law, she had demonstrated a naiveté about the requirements of running a complex business.

The Tribunal was not satisfied by the explanations provided by Nouh FDC or its proprietor Ms Hamieh in respect of the significant and numerous breaches, which would provide doubt to the Tribunal that the breaches identified by the Respondent had not occurred. Additionally, Ms Hamieh attempted to explain that some breaches had occurred as a result of the former proprietor, software issues and educator and parent non-compliance. This demonstrated that she did not grasp and understand that she was ultimately responsible for ensuring the strict compliance with statutory requirements. The Tribunal found that this lack of understanding created serious doubt about Ms Hamieh’s suitability to operate an approved family day care service under the Administration Act.

Given the extensive evidence before the Tribunal, it is satisfied that Nouh FDC has demonstrated a significant and frequent history of non-compliance and misreporting, across numerous areas, resulting in a significant number of breaches of its obligations under the family assistance law, the National Law and National Regulations....

Nouh FDC’s breaches are not minor. The overcharging and misreporting of thousands of sessions of care is an extremely serious matter and demonstrates a lack of care and compliance with a number of legislative requirements under the family assistance law. Through its non-compliance with its conditions for continued approval, Nouh FDC received payments of public funding that it should never have received. Further to this, by breaching educator to child ratios, Nouh FDC provided child care in circumstances where it was not lawfully allowed to provide such care, thus giving rise to potential risks to the safety, health and wellbeing of children under its care.In the circumstances as outlined in its decision, the Tribunal is satisfied that cancellation is the appropriate sanction. The health and safety of children and the quality of the care provided is of paramount concern. Additionally, protection of government subsidies and the blatant disregard of the public purse cannot be ignored. If the Tribunal were not to cancel Nouh FDC’s approval, there is a risk that any child in its care may not be appropriately cared for, given the systemic failure of the service to oversee the level of child care that it held approval to provide. This is of particular concern in regards to the breaches concerning educator to child ratios. While the Tribunal acknowledges that Ms Hamieh was frank in conceding the breaches identified and has plans to address the issues in the future, these measures have not been tested. The breaches identified are egregious and highlight that Nouh FDC’s governance arrangements are systematically flawed or non-existent. For these reasons I find that cancellation of Nouh FDC’s approval to operate as a family day care service is appropriate. (paras. 112-115, 122-3).