Commission decision highlights the importance of conducting sound investigation of incidents involving students

In the recent decision of Emma Horan v Dubbo Early Learning Centre [2019] FWC 3249, the Fair Work Commission highlighted the need for employers in schools and early learning to undertake proper investigations following the sacking of a teacher who was falsely accused of mistreating a child.

Facts

The applicant was employed as a teacher at the Centre. The applicant received a call from the owner of the Centre, stating that she was to be stood down because of an incident that had occurred the day before and which had been anonymously reported to the Centre.

The Centre’s owner alleged the incident amounted to ‘serious and gross misconduct’ and told the applicant she would be required to attend a meeting the next day. The applicant then responded asking for 24 hours’ notice of the meeting and details of the allegations.

The Centre conducted a brief investigation of the alleged incident. Witnesses who were interviewed provided accounts of the incidents with a significant number of inconsistencies and no staff member stated that the applicant had yelled or that the child had been placed in an exclusion spot.

Despite this, the Centre dismissed the applicant for ‘serious’ and ‘gross’ misconduct. The alleged misconduct involved forcibly removing a child who was engaging in rough play to an exclusion spot, yelling at the child to stop when they started to cry and then physically removing the child to another room through a partition wall, which involved pulling the child through the door to release his grasp.

The applicant’s claim

The applicant denied the allegations and claimed that the following had occurred:

• The incident involved the applicant separating two children when one had been sitting on another’s head.
• When the applicant moved the child by holding his hand, the child ran at the applicant and started hitting her.
• To stop the child from hitting, the applicant picked the child up and took him to the next room.
• As they walked to the next room the child grabbed onto the partition doors requiring the applicant to remove his hands.
• The applicant went back into her classroom and was followed by the child.
• The applicant asked then sat down to the child level and asked him to calm down and if he was ready to come back into the room. The child said yes and hugged the applicant.
• As a result, they moved back into the classroom.

The applicant also argued that given the significant inconsistencies of the witnesses it was not possible to find the conduct described in the termination letter had occurred.

The Centre’s argument

The Centre argued that its action had been necessary because of its obligations under the Education and Care Services National Law and Regulations, which required the Centre to notify the regulator of the incident and what steps had been taken to ensure the incident did not happen again.

The Centre also argued that its investigation had been sufficient.

Decision

The Deputy President found that, given the Centre was alleging that the applicant had engaged in serious misconduct, the Centre was required to prove that the misconduct had occurred.

The Deputy President found that the Centre had not discharged this onus because the Centre’s decision was ‘unsound, indefensible and ill founded’ and ‘based entirely on a hopelessly flawed investigation’.
Specifically, the Deputy President found that the applicant had not:

• removed the child to the exclusion spot
• yelled at the child
• pulled the child through the door.

The Deputy President found that the Centre’s investigation process was so flawed, hastily conducted and finalised that there was no alternative than to find that the applicant ‘was denied procedural fairness on a wide scale’ because the Centre had failed to take ‘the usual and orthodox steps taken in employment situations such as this’.

Failed investigation process

Examples of this denial included:

• refusing to provide the applicant with 24 hours’ notice to arrange a support person
• not providing the applicant with details of the anonymous complaint at the time or any time during the dismissal process
• forming a view that the applicant should be dismissed only one day after interviewing Centre staff and before the applicant had been given a chance to respond
• interviewing a staff member who provided a different account of events seven days after the dismissal had taken place
• determining that the applicant had refused to attend a meeting with Centre management when she had not in fact done so.

The Commission ordered that the applicant be paid 10 weeks’ compensation, consisting of 8 weeks’ compensation for the period that she remained unemployed (having had a job offer revoked as a result of the allegations) and 2 weeks in lieu of the notice she should have been paid.

In relation to the owner of the Centre’s claim that it was acting on legal advice during the dismissal process, the Deputy President stated: ‘If this was correct, he should insist on a refund of any fees paid for such advice to a lawyer or agent’.