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.