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