Filippi v Kiddies Place Child Care Centre [1996] QIRC 796 (1996) 153 QGIG 1161

1160 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 December, 1996 21862_ l.D OC 1. II ( I ' rI ! l I I I l' l 6 December, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1161 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMM ISSION /11d11s1rial Relations Act 1990 s. 295 - application for reinstatemen t Tanya Loise Filippi AND Kiddies Place Child Care Centre (No. 8817 of /996) CHILO CARE INDUSTRY AWARD - STA TE COMM ISSIONER FISHER 26 November 199 6 Reinstatement - Conduct -- Un authorised purchases -- Sales tax - Exe mpt ion fom1 - U nauthori sed r efe rence.~ - U naurthori sed direction - Disloyally --Alleged harrassment -- Performance -- Capacity -· Appoin ted lO permanent position •· Specific all egations not put to applicant -· Dismissal not harsh -- Application refused -- CostS application denied. DECISION Tanya Fi li ppi h a.~ applied for reinstatement 10 her fonner position of Contact Di rector/Gro up Leader with the Kiddie., Place Child Care Ce ntre. At the commencemen t of the hearing Ms Filippi's represent ati ve, Mr Hosk in g, cootended reinstatement was im practicable an d as an altern at i ve. compensation was sou ght. The amount of compensation sough t was calcu lated on the basis of fi nancial l oss over the six months immedi ately following Ms Filippi 's dismissal. In additi on com pensation for the un fair dismissal, embarrassment and humiliation was sou gh t. M s Filippi commen ced emp loyment with Kid dies Place in October 1994 as a relief Group Leader on an "on call " ba.sis . This situation continu ed through to December 1994 wh en she was appointed a~ a Group Leader in the place of another staff member. In May 1995 M s Filippi assumed the position of Co-director although she also continued 10 work as a Group Leader. Each of these positi ons from December 1994 were cas u al full-time. Ms Filippi was appointed permanently on 25 March 1996. She was dismissed from emp loyment on 22 April 1996 wi1h one wee k 's pay in lieu of notice. The licensee of the Cen tre, Margaret Power, told the Commission Ms Filippi had been dismissed for disloyalty and dishonesty. Mr Amey, appearing for the employer, submitted that valid r easons rel at i ng to 1he employee's conduct, capacity and performance e)(isted for the dismissal. Through 1he witness statemenL~ an d over the course of the hearing seven maj or issue~ were raised by 1he emp loyer as fomting the basis of the di~missal. I have categorised these issues according to the valid reasons permitted by s. 291(l )(b)(i) of the Industrial Relations Act 1990 as follows :- CONDUCT (i) Purchase of Videos Ms Filippi purchased two video cassenes without authority from the l icensee. The conc..-em abou t this was two fold. viz., Ms Filippi acted contrary to the requirements of her job description which clearly indi cated ordering of equipment or resources was 10 be done in conju ncti on with the licensee and secondly, she had signed a sales tax exemption form, again wi thout aurhority. Some sugges tion was made by Mr Amey in his closing submissions that Ms Filippi had pu rchased more than two videos in the mann er demi led above and her purpose was nm to use them at Kiddi es Place but rather that she was building up r esour ces for her own bus i ness at her employer's expense. I accept this is mere speculation on Mr Amey's part ; it could not be established on the material before me. Part of I.he concern of the licensee, Mrs Powe r, went to the se parate arrival of the videos. Exhibit I 0, the order fonn, clearly shows however that the videos were or dered t ogether, on the same date. I accept Ms Filip pi 's evidence that one of the videos was on bac k order. 21862_1.DOC -- 1 of 3 -- 1162 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 December, I 996 Mrs Power's other concerns remain valid. Im.:spcctivc of the p1ic_c of the video~ (one was $19.95 and the other $12.95). Ms Filippi had no authority to place the orders. She explained her actions hy ,aying Mrs Power was 011 leave when the representative attended the Centre Except that the children at the Centre we1e leammg the alphabet at the t11ne. there wa~ no compelling reason for the purchases heing made then l am satisfied Ms Filippi was aware of the provisions of he, job description. Mrs Power's evidence, which was not challenged by . the applicant, wa, that M~ Filippi had provided and retyped the Joh de~cnptions included in the Staff lnfom1ation Handbook 'lhc remaining issue of concern relates to the sale,; tax exemption. When questioned hy Mrs Power after the first video anived, Ms Filippi had no recollection of signing a sale~ tax exemption form. Thb evidence wa., consistent with her oral evidence that she could not recall s1gnmg a scpar·at~ sales tax exemption form but recalled :-.igning the orJer form. Exhibit If, reveals that the sales tax exemption fonm part of the order form. While \1r Arne) omitted 10 put exhibit JO to Ms Filippi, i am satisfied that when she said she signed the order forn1 he1 ~ignamre ,elated to the sales tax exemption. He1 signature doe~ not appear elsewhere on the frn m. Ms Filippi's actions have heen investigaled by the Australian Taxat~on Office (ATO). A letter from that office was tendered adv1smg that no furtncr action was to he taken in respect of the matter. Both \1s Filippi and Mrs Power infonned the Commission that the re,L-;ons given to them orally by the ATO a, to why no further action was to be taken was that essentially, the amount involved did not justify the amount uf resource:-. requll'cd to he expended. After a.;;sessing the evidenct'. I am !'>atisfied that Ms Filippi acted naively in signing the fonu without authority Her actions, howe,cr well mtentJoned at the ume, may have opened the business to mvesllgauon. Mrs Power raised the i~sue of rndering the videos without authority with Ms Filippi when she discovered the arrival of the first video. I am satisfied that Ms Filippi did uot repeat the behaviour after this. I ii) Provision of References Durinu Mar·ch 1996 Mr~ Power discovered the Centre'<; lettL:rhcad had heen dum1~1ied up and copied. Mrs Power raised the issue with ~s Filippi who denied any involvement. Later Mrs Power disco,e,c:d M:-. hhppi had provided a ,eforence on dummy Centre letterhead to a tonner employee She quest10ned Ms Filippi about the mailer. While _m1tially denymg the allegation. Ms Filippi later admitted to prm1d111g a reference tor her 1>1ste1, a former employee of Kiddie-. Place. During her oral evidence Ms Filippi admitted to providing two further references for former employees. The reft'rence:-, had been produced on her home u>mputer w,ing dummy Centre letterhead Ms hlippi could not see anythmg wrong with her actions saying ~he wa-. doing h<.'._th the employees and Mrs Power favours in a<;sisting dis~atlshed employees tmdmg altcrnat1,e employment Irrespective of whether Mrs Power had given ,rn e_xprcs\ direction to staff not to i.;sue references a,; ~he claimed M~ F1hpp1 farled to grasp the se1iousnes~ of her actions. (iii) Direction to deduct money from another employee's wages These allegations were made by two staff members. The sit':'1tion -~v:L~ said to have arisen on 19 April 1996. When Madeleine Allan. a Child ( me As~istant, arrived for work on thm day at approximately 6.55 am, she found M~ filippi at work. Ms Filippi advised her she was unwell and had heen attemprine to contact Lara Wylie, tbc relief Group Leader. but to no avail. Eventually M~ Wylie and Ms hl!ppi made contact Ms Wylie auived tor wrnk at about 7 .45 am While sonc difference~ emerged over who contacted whom. it i<; unimponant. The seriow, allegation raised by both Ms Allan and tv1s Wylie i~ that \is Filippi mstrncted $10 he removed from Ms Wylie·s wage~ and given ro her a, payment for the work she had done that morning before gomg home sick. Ms Allan was ro take Ms Filippi'~ pay to her home later thi.lt d ..1y. Both M~ Allan and Ms Wylie claim tvts hhpp1 told them not to tell Mr<. Power she had heen at wotk that morning. When Mrs Power arrived at the Centre M~ Allan and Ms Wyhe told her of the events that mormng. Mrs Power'~ evidence confinned that on her arrival M, Allan and Ms Wylie approached her expre;;sing their concern,. The allegations are denied by Ms Filippi. She cla11ned the incicknt simply did not happen. I ain satisfied rhe incident occurred a, outlined I have reached this conclusion not only because of the corroboration of lhe evidence by three witne,ses but also for another important reason. Ms F1hpp1 had a~ked Ms Allan to bring her pay to her home later on the Friday. On relaying the event~ to Mrs Power, \is Allan was instructed not to do so Ms F1hpp1 did not receive her pay packet that week but received her wages for the previous week and her final pay when ,;he presented for work on 22 Apnl. l 99~. While notin!! M~ Allan's occasional dis:-.atisfact1on with Ms F1hpp1 s treatment of !1er, I am satisfied M5 Allan and M~ Wylie had no reason to collude against Ms Filippi. M~ Filippi· s directions to her staff m respect of this incident demonstrate cb:eit although it is clear Ms Filippi did not perceive her actions as bemg so. (iv) Neg.alive remarks about Licensee to staff and parents iv) Proposal to commence own home day care These two issues have been grouped together a<; they have a common thread of di~lova1t,·. I do not propose to discuss each of them in detail, however. the ~l:J,J<~r issue rai<;ed under (iv) relate~ to alleged dispar·aging comments made to staff and parents by Ms Filippi about Mr~ Power when she refused to pay her for her altendance at a funeral. It is impo~ant to nvte no entitlement to hereavement leave existed. Part of Ms F1ltpp1 s complamt was that she was not paid for the whole of the day in quest10n despite working in the mornmg That work had heen performed was unknown to Mis Power. Item (v) relates to an allegation made by Susan Azzopardi. au occasional staff member who i~ also a parent. that M~ Filippi had claimed m her presence and the presence of another staff membe1 that she intended to ope,·1 a home ba'ied day care arrar1gement at her mother's. house, police checks had been carried out and four parents from K1dd1cs Place had indicated their preparedness to enrol their children This issue was onlv rai~ed with Ms Filippi in her t:v1dc11ce hut it was a pcrsum,ive factor in her· dismissal In evidence Ms Fihp_p1 denied making the remarks claiming her mother's residence was unsunahle. Further she claimed the statement wa-; made by the third person involved in the conversation, another employee. M~ Azzopardi was; equally certain in her evidence that Ms Filippi made the statement. Untortunately the third person involved was nol called to give evidence. l have considered the matter from two aspect~. \'ts Filippi's explanation a,; to the unsuitability of her mother's house and the fact she ha, not subsequently ..;tarted home b:L\e<l day care point to the remark~ not having teen made bv her. Ms Azzopardi'!'> evidence wa<. however that :--he was so -;h\)Cked by ~h Filippi's remmks she immediately contacted Mis .Power. I have considered whether Ms Azzopardi could have wrongly attnbutcd the remarks made by ar1other ocr~on to Ms Filippi. What would have been her motivation'' Cl~arly. Mrs ·Azzopardi had residual concerns with Ms Filippi as evidenced bv Mrs Power who said that as a result of the hu~ incident Ms Azzopardi wo~ld nornial!y advise her of her conversations with Ms Filippi. Ms Azzopardi wa..; not cross-examined at any length on her reasons for contacting: Mrs Power and a-; a result no malice could he attrihuted. Bearing: in mind Ms Filippi ha<; prev10usly denied certain matters which were later found to be true and given that \is Azzopardi acted with ha~te but not malice. it is open to the Commission to conclude the remark~ were made ,L" claimed. (vi) Treatment of Staff and Paren1)-, The matters raised under this heading w,!re belittling comments made by Ms Pilippi about \luff to them and hara~sment of Ms Azzopardi. Complaints about Ms Filippi·~ manner were raised by M,; Allan and Keni-Anne Smith, a fom1er Group Leader at the Centre. Mrs Pows?r'i'> evidence confiime<l complaints had been made by staff Ms Azzopaidi iai~ed complaints of hara-;smcnt in relation to two matteb. The first related to a ~riod when she was driving the Centre's bus 10 the ah~i::nce of Mr and Mrs Power. Apparently a private arrangement had been entered into between the Powers m1J Ms Azzopardi yet Yts Filippi constantlv asked her about the payment :irrangcments Ms Filippi claimed the arra:g:ement~ had bt'ell queried as -;he was then rcsp(insiblc for the 21862 I.DOC 6 December, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1163 payment of wages. Ms Azzopardi said she told Ms Filippi it was a private arrangement yet she continued to be pressed for details. On the Powers return, Ms Azzopardi complained and Mrs Power spoke to Ms Filippi. The second complaint of harassment arose out of the conversation about the setting up of the home based care. Immediately following the conversation Ms Azzopardi telephoned Mrs Power and arranged to visit her. Ms Azzopardi infonned Ms Filippi of her arrangements. Later that afternoon and the ensuing week, Ms Azzopardi said she received at least six telephone calls or messages from Ms Filippi seeking information a<; to what had transpired. Ms Azzopardi also claimed to have continued to receive telephone calls after Ms Filippi's dismissal. Ms Filippi denied harassing Ms Azzopardi either in relation to the arrangements for driving the bus in connection with her meeting with Mrs Power. She said she had only contacted Ms Azzopardi once in relation to each incident. After a.;;sessing all of the relevant evidence I have found Ms Azzopardi to be the more credible witness It seems most implausible that had Ms Filippi only approached Ms Azzopardi once in relation to each incident that she would complain of hara<;sment. In relation to the busdriving incident, it is apparent Ms Filippi made Ms Azzopardi feel sufficiently uncomfortable to lead her to complain to Mr and Mrs Power. This complaint resulted in Mrs Power then deciding to discuss the matter with Ms Filippi. There was no denial by Ms Filippi that the bus driving matter had been raised with her by tvlrs Power although it was Ms Filippi's evidence that Mrs Power only advised the arrangements made with Ms Azzopardi were private. PERFORMANCE The seventh and final issue comes under the heading of performance. (vii)Parent Complaints It seems that Ms Filippi was; the subject of several parent complaints in relarion to the treatment of children at the Centre. To protect the privacy of the parents and the children concerned their names will not be disclosed in this decision. I should also add that none of the parents concerne.d were called to give evidence. The evidence was provided by Mrs Power and other staff members, one of whom also had a child at the Centre. Serious allegations were raised about Ms Filippi's treatment of particular children. At the time the incidents were alleged to have occmred Mrs Power addressed the complaint~ with Ms Filippi who, on each occa<;1on, denied the allegations. She repeated her denials in the witness box. Two of the incidents were witnessed by Kerri-Anne Smith who gave evidence of them. Her evidence contradicted Ms Filippi' s denials, Ms Smith is no longer an employee of the Centre nor does she have any children at the Centre. She could not have been under any particular pressure to give the evidence she did. While I am satisfied the nature of child care centres generate parent complaints, the matters raised by Ms Smith in particular are serious. Even though M~ Smith sugge~ted Ms Filippi had not acted maliciously, questions about Ms Filippi's perfonnance have not been satisfactorily addressed CAPACITY Many of the issues rnised above cross over into the mea of capacity, for example, the provision of references, the purchase of videos and hara'>Sment of Ms Azzopardi. From Mrs Power's evidence it seems that it wa<; the accumulation of issues which led her to decide to dismiss Ms Filippi. Her concerns were aroused with the arrival of the first video cassette in March, highlighted over the matter of the references and exacerbated by the arrival of the second video on 17 April 1996. (At this time Mrs Power believed Ms Filippi acted contrary to her earlier instructions and had ordered another video). The information about the direction to deduct money from Ms Wylie's pay seemed to decide Mrs Power to dismiss while the advice about Ms Filippi's intention to establish her own home based child care confirmed her decision. . Having addressed each of the major issues raised by the employer individually and having regard tu the totality of the matters I am satisfied the employer ha<; established a valid rea<;on for dismissal in relation to conduct 163204-87 and capacity. I am not so satisfied that a valid reason related to perlormance as a separate criterion existed given the absence of direct evidence in respect of several incidents and given they ultimately did not appear to have directly influence.d Mrs Power's decision. I accept however, they coloured her perception of Ms Filippi. Mr Hosking questioned the decision of the employer to dismiss Ms Filippi less than one month after she became a pennanent employee. By the time Ms Filippi became permanent on 25 March 1996, the incidents regarding the videos and dummy letterhead had occurred, staff had complained about their treatment and certain parent complaints had been lodged. In Mr Hosking's submission the employer wm; aware of these matters but had nonetheless decided permanent employment was in order thus demonstrating the relationship wa5 not a<; perilous as the employer contended The evidence revealed that Ms Filippi. along with certain other staff. were made permanent at their request. The decision to make her ~rmanent wa<; taken prior to Ms Filippi taking leave with permar1ency occurring on her return from leave. While Mrs Power had suspicions about Ms Filippi's conduct, nothing concrete had been established to prevent the char1ge in status. This explanation is plausible given the whole of the evidence. In addition when Mrs Power's concerns crystallised decisive action wa-, taken. The pennanency of employment did not affect her decision. Mr Hosking contended the dismissal was harsh, unjust or unreasonable primarily because specific allegations were not put to Ms Filippi at the time of her dismissal. In this respect the Commission·s attention was drawn to s. 292( I) of the Act. The termination interview occurred on 22 April 1996 at 8.00 am. Mrs Power called Ms Filippi into the office where Mr Power was also present. Mrs Power told Ms Filippi that she regretted matters had come to this and handed her two envelopes. Ms Filippi asked what she had done wrong. Mrs Power advise.d it was misconduct. Ms Filippi claime.d the misconduct was not explained whereas Mrs Power said she told Ms Filippi the misconduct was based on disloyalty and dishonesty. Mrs Power also claime.d Ms Filippi then denied she had been disloyal or dishonest. Whichever rea.;;on is accepted it is apparent specific allegations were not addressed with Ms Filippi on the day of her dismissal. I am satisfied that many of the issues which had led Mrs Power to her decision had been discussed with Ms Filippi during the course of her employment. In particular reference is made to the purchase of the videos, provision of the reference and parent complaints. It has been accepted in this Commission that provided allegations have been addressed during the employment s. 292( 1) is taken to have been satisfied It is clear that the issues relating to the directiun to deduct money and the establishment of her own business were not at any stage put to Ms Filippi during her employment or prior to advising her of the dismissal. Yet these were two issues directly relating to dishonesty and disloyalty respectively. What then is the effect of failing to put the allegations? Is it to be considered an element in determining whether the dismissal 1s harsh, unjust or unreasonable (see Byrne and Frew v Australian Airlines Ud ( 1995) 131 ALR 422) or alternatively, does the failure to put allegations contravene s. 292 of the Act thus triggering the Commission's jurisdiction to order a remedy? (See Gear v ff Richards and Sons Pty /Jd 153 QGJG S32) 1 shall deal with each of these propositions although ultimately the same outcome re~ults. While this failure is a serious deficiency on the part of the employer I do not consider that it ultimately renders the dismissal so harsh, unjust or unrea5onable that the Commission should intervene. Had the allegation of the proposal to deduct money been put hy Mrs Power, it is reasonably open to conclude that given the allegations were levelled by two staff members and in light of pa,t behavioural issues, no further denials would be accepted. I also accepted earlier that Ms Filippi had directed the deduction of money. This action cannot be sanctioned and when considered in combination with the admission of the provision of the references on dummy letterhead, it demonstrates that Ms Filippi is not suitable to hold the position of Director. With respect to the matter of Ms Filippi allegedly establishing her own day care, I am not satisfied Mrs Power would have accepted her explanation that Ms Azzopardi had incorrectly attributed the remarks of another pe1;,on to her and explaine.d the proposition was not feasible for the reasons outlined 21862_1.DOC -- 2 of 3 -- r 1164 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE earlier, mauers had already gone LOO far and the relationsh ip sufficiently deteriorated for Mrs Power to reconsider her decision. The money incident alone constituted sufficient reason for tem1ination but in this ca~e there hove been too many incidents reponed by different people to allow Ms Filippi 's explanations to be accepted. Her changed posi11on on certain matters, especially t hat of the references, demonstrates t hat trust and honesty had disappe.ared from the relationship. These are essential elements of any employment relationship but espec1ally imponant for a Director who represents the employer in their absence. For all of the above reasons, the disrniQ.al wa~ not harsh, unJuSt or unreasonable. The alternative proposition is that failure to afford a reasonable opportunity 10 defend contravenes the Act and consideration of a remedy arises. Jf this proposition is correct then l wou ld decline to exe rcise my discretion to order a rcmed)• given the nature of the oo nduct and capacity issues involved and my findings about Ms Filippi m relation to th em. The applicaii on 1s refused Mr Amev foresha dowed that in the event the claim wa.~ dismissed he would be s~king cosL~ pursuant to s. :\00 of the Act on the ba.~is the appli cation wa~ frivolous or vexatious. In my view such an application is unwarranted because of the frulure of the employer to identif)· t he grounds of dismissal. II clearly lefi the applicant m a position of not knowing the basi s of the employer's decision and in such circumstances the pursuit of an unfair dismissal claim was not unrea.~onable . The Commission orders accordingly. G.K. FISHER, Commissioner. Appearance.,:- Mr D. Hosking of Allwood Marshall Solicitors on behalf of the applicant. Mr P. Amey of Livingstones Australia on behalf of the responden t. Operative Date : N/A Decision Reinstatement Relea~d: 26 November 1996 ########################################################## ~ ' 6 December, 1996 6 December, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1165 II 21862_ I.DOC 21862_1.DOC -- 3 of 3 --