Unfair Dismissal: Elizabeth Gomes v Gemela Pty Ltd T/A Kool Kidz Preston

This was a case heard by the Fair Work Commission in which the educator (Elizabeth Gomes, the Applicant) sought compensation for unfair dismissal from the employment of a childcare service (Respondent) under the Fair Work Act 2009. The basis of the dismissal was that the educator was involved in two incidents. These involved not securing a child in a highchair such that the child slipped out and not raising the side rail on a cot in which a child was sleeping.The Commission found that the the conduct occurred providing a valid reason for dismissal. However, the Commission found that the educator had been unfairly dismissed as she had not been accorded procedural fairness:

I have considered the reasons for dismissal of the Applicant and the lack of procedural fairness afforded to her in effecting the dismissal. On balance I have decided that the dismissal was unreasonable in circumstances where the Applicant was not given a proper opportunity to respond to the allegations made against her. While I accept that Ms Wilson [Director] was open to changing her initial view that the conduct constituted serious misconduct in that it endangered the child, by requiring the Applicant to respond to the allegations with no advanced warning meant the Applicant did not have an opportunity to understand the severity of the allegations or provide a considered response. The Respondent clearly considered the matters very serious – Ms Wilson had reached a conclusion that the conduct of the Applicant amounted to serious misconduct. In the circumstances however there was no reason that Applicant could not have been given details of the allegations, a chance to consider them and gather her thoughts as to the incidents and an opportunity to respond.
A decision to dismiss an employee is not one that should be taken lightly. While I accept that the safety of the children in this case is paramount there was no harm to be done by providing the Applicant with some time to respond. (paras.76-77).

The Commission did not make a decision on a remedy (i.e. compensation) at this stage pending more information from the parties. This case again emphasises the importance of services providing procedural fairness to educators they are considering dismissing, see also previous unfair dismissal case summarised in a previous blog post.