A recent decision of the Fair Work Commission (FWC) Jenny Wood v Amigoss Preschool and Long Day Care Cooperative Ltd [2022] FWC 2925 (Decision) highlights the importance of organisations following procedurally fair disciplinary processes, especially in relation to ensuring allegations of serious misconduct against employees are properly investigated.
The case considered an unfair dismissal claim by Jenny Wood (applicant) who had been terminated by her employer, without notice or monetary payment in lieu of notice, following allegations of serious misconduct including child abuse.
The FWC concluded that, “the belief of the employer that the applicant had committed conduct that was sufficiently serious to justify her immediate dismissal, was not established on reasonable grounds.” Further, the Commission found that the employer “failed to undertake any reasonable investigation of the allegations which he substantiated as reason(s) for the applicant’s dismissal, and he recklessly substantiated serious findings of abuse of a child without any testing of the individuals who had raised these allegations.”
Background
- The applicant was engaged as an Early Childhood Teacher in the Preschool classroom at the Preschool and Long Day Care Centre (Centre) operated by the employer, which was located in the Sydney Suburb of Glebe. The applicant was employed on a permanent full time basis from 2015-2020, prior to which she worked both casually and on part time basis at the Centre.
- The applicant’s role was reliant upon her holding a valid Working with Children Check (WWCC). In January 2020 the applicant was informed by Mr Gomez, Business Manager and CEO (Mr Gomez), that her WWCC was due to expire. The applicant was aggrieved by her employer’s late notice of the expiry of the WWCC, and until March 2020 was unable to undertake any role which involved contact with children.
- On 17 March 2020, the applicant lodged seven grievance forms with her employer’s Board of Directors, in relation to allegations of inappropriate behaviour by Mr Gomez. The grievances were investigated by the employer’s lawyer who found that the allegations were mostly unsubstantiated, but the allegations relating to inappropriate managerial conduct were substantiated. Recommendations arising out of the investigation were not provided to the applicant or the Mr Gomez.
- In October 2020, the applicant’s immediate supervisor Ms Ortez liaised with Mr Gomez and prepared a report detailing the applicant’s “shortcomings” which the applicant had been “presenting for several years”. The report was provided to the employer’s Board of Directors on 15 October 2020. The Board of Directors authorised that the Ms Ortez and Mr Gomez could hold a ‘without prejudice meeting’ with the applicant to negotiate her resignation.
- On 26 October 2020, the applicant was requested to attend a ‘without prejudice meeting’ without notice of the subject matter or concerns raised in Ms Ortez’s report, and without the offer of a support person being present for the meeting. At the meeting, Mr Gomez advised the applicant of concerns relating to the applicant’s conduct including concerns raised by parents of children at the Centre. Mr Gomez attempted to negotiate the applicant’s resignation and threatened further disciplinary action if she failed to resign.
- Following the ‘without prejudice meeting’ the applicant sought independent legal advice and a series of emails were sent between the employer and the applicant’s lawyers, including a request made by the applicant’s lawyer for particulars of the allegations against her. Broad allegations were provided to the applicant’s lawyer in relation to the conduct of the applicant, however the applicant’s lawyer claimed that the allegations were not particularised enough for the applicant to respond.
- On 9 November 2020, the applicant returned to work and was provided with a letter entitled ‘Confirmation of Suspension’, followed by a letter entitled ‘Invitation to a Disciplinary Meeting’, in which five allegations were particularised including two allegations that the applicant had engaged in physical abuse of a child on two separate occasions in 2017, including tying the child’s hands together with tape or rope. A further three allegations were particularised including the applicant’s conduct of removing information from the employer’s computer, not providing information to parents and scolding a child for incorrectly pasting in their book.
- The applicant attended the Disciplinary Meeting and was allowed two support persons. In that meeting the applicant denied the allegations and raised concern that the allegations relating to child abuse were from 2017 and only arose following the ‘without prejudice meeting’ conducted in October 2020.
- Following the Disciplinary Meeting Mr Gomez issued a letter entitled ‘Summary Termination of your Employment’ and substantiated all five allegations against the applicant, without any further investigation and despite the applicant’s denial of the allegations.
- The employer reported the allegations to NSW Police and the Department of Education, in line with his reporting obligations.
- On 25 November 2020, the applicant was arrested and charged with two counts of assault of a child and as a result of the charges, her WWCC was revoked and therefore she was unable to work with children.
- On 11 April 2022 the assault charges were dismissed by the NSW Local Court.As a result of the charges and revocation of her WWCC, the applicant was unable to find permanent work and therefore suffered financial loss, including in relation to defending the criminal charges.
The FWC Decision
The FWC considered relevant legislation in relation to unfair dismissal, including whether the employer complied with its obligations under the Small Business Fair Dismissal Code (SBFDC).
The SBFDC provides that an employer may summarily dismiss an employee when the employer ‘believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal’.
In submissions, counsel for the employer conceded that the employer had not complied with the SBFDC in relation to allegations three to five and therefore the focus of the FWC was on allegations one and two in relation to the child abuse allegations.
The employer conceded during cross examination that in relation to the child abuse allegations, he held a “suspicion that something had happened” however after receiving written statements from three witnesses, he had not questioned the witnesses or made any further enquiries about their respective statements and accepted them as evidence on face value.
The FWC determined that the employer had substantiated the child abuse allegations “without any proper inquiry, investigation or testing of the individuals who had made the allegations”, nor did he inquire as to why the allegations had surfaced after three years and following the ‘without prejudice meeting’.
The FWC therefore found that the dismissal of the applicant was not compliant with the SBFDC and therefore considered whether the dismissal was ‘harsh unjust or unreasonable’ as is required by Section 385 of the Fair Work Act 2009 (Cth). The FWC found that “the employer made erroneous findings of serious misconduct that not only destroyed the applicant’s employment but caused significant personal, financial, reputational, and career damage”. The FWC further stated that “the reason for dismissal of the applicant was not sound, defensible, or well-founded. There was not a valid reason for the dismissal of the applicant.”
Outcome
The applicant’s claim for unfair dismissal remedy was established and the FWC ordered the employer to pay compensation exceeding $33,000.
Learnings from the Decision
When serious allegations are made against an employee, especially those involving allegations of child abuse and harm, organisations must take procedurally fair steps to ensure that the allegations are properly considered, and a procedurally fair disciplinary process is followed. Failing to do so my result in costly litigation in the FWC, irreparable financial and reputational damage to the subject of allegations, and the risk of inappropriately managed matters resulting in an unfit person continuing to work with children.
A vital component of disciplinary processes in relation to serious misconduct, is a thorough and fair investigation which affords procedural fairness to the subject of allegations. This involves:
- Putting the subject of allegations on notice as to the particulars of allegations
- Providing the subject of allegations a proper opportunity to respond
- Testing the evidence available to the investigator through witness interviews
- Thoroughly considering documentary evidence
- Properly weighing up the evidence and making findings on the balance of probabilities to the Briginshaw standard
Ensuring a procedurally fair investigation is conducted is vital to child safety and safeguarding matters, as failing to do so may result in unfit persons working with children and young people and children being harmed. Thorough Investigations are also required in order to comply with state Reportable Conduct Schemes.
How can we help?
Safe Space Legal regularly assists organisations in responding to misconduct allegations and providing clients with employment advice on disciplinary processes, child safety and safeguarding investigations including under relevant reportable conduct schemes, and representation in the FWC defending unfair dismissals. We can also provide training to your internal HR and safeguarding team on conducting legally defensible investigations and upskilling your organisation.
Contact [email protected] or call 03 9124 7321 to make a complementary consultation to discuss your child safety and safeguarding needs.