Cantwell v NQ Early Learning Pty Ltd [2004] QIRC 50 (2004) 175 QGIG 1092

1092 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 March, 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Troy Francis Cantwell AND NQ Early Learning Pty Ltd (No. B1640 of 2003) DEPUTY PRESIDENT BLOOMFIELD 12 March 2004 Application for reinstatement – Whether employee was an apprentice under s. 60 of Training and Employment Act 2000 – Applicant entitled to pursue application – Alleged serious misconduct – Witness evidence – Witness credibility – Evidence of respondent’s witnesses preferred – Alleged conduct found to have occurred – Onus on applicant to show termination unfair – Onus not met – Application dismissed. DECISION Introduction Mr Troy Francis Cantwell (the Applicant) seeks reinstatement to his previous position as a part-time child care worker with NQ Early Learning Pty Ltd (the Respondent), the operator of Mission Beach Child Care Centre (the Centre). The Applicant was dismissed on 29 September 2003, the reason given being “serious misconduct in the matter of using corporal punishment to discipline a child within the child care service, whilst acting in the capacity of a paid child care worker”. The child also happened to be the Applicant’s son. The Applicant commenced employment at the Centre on or about 16 September 2002. His employment continued when the child care centre was sold to the current respondent, NQ Early Learning Pty Ltd, in May 2003. Preliminary issue At the commencement of proceedings I raised with the parties the Commission’s ability to deal with the application on the basis the material filed disclosed the Applicant was an apprentice at the date of his termination (see s. 72(1)(f) of the Industrial Relations Act 1999 (the Act)). The material indicated that although the apprenticeship commenced on 2 September 2003 it was not formally registered until 22 October 2003. Relevantly, section 54(4)(a) of the Training and Employment Act 2000 (the T&E Act) provides: “If the council registers the contract the contract is effective on and from the date it is registered.”. In addition, s. 60 (Reinstatement in previous position) of the T&E Act provides: “(1) This section applies if an apprenticeship or traineeship (the “training”) starts and – (a) any of the following events happen – ... (iii) the apprenticeship or traineeship ends before the probationary period for the apprentice or trainee ends; and (b) immediately before the apprenticeship or traineeship started, the person training as an apprentice or trainee was employed in a position (the ‘previous position’) by the employer, other than as a casual employee. -- 1 of 7 -- 26 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1093 (2) The employer, immediately after the event happens, must give the person a written notice stating that within 5 days after receiving the notice, the person may ask to be reinstated in the person’s previous position or in another position on at least the same pay and conditions as applied to the previous position immediately before the apprenticeship or traineeship started. ... (3) If the person asks to be reinstated under subsection (2), the employer must re-employ the person in the person’s previous position, or another position, on at least the same pay and conditions as applied to the previous position immediately before the apprenticeship or traineeship started. ... (4) If the employer contravenes subsection (3), the person is taken to have been unfairly dismissed under the Industrial Relations Act 1999, chapter 3, part 2, and subject to that part, has the remedies under that part.”. The available information also disclosed that the Applicant had completed a traineeship before entering the apprenticeship. There was no material before the Commission to indicate when the traineeship ceased and the apprenticeship began. After considering the submissions of the parties and the material before me, I ruled there appeared to be no formal apprenticeship contract in existence at the time of termination and, consequently, the Applicant was not precluded from bringing his application. In the alternative, if the contract of apprenticeship was in place as at 29 September 2003, it was terminated before the end of the apprenticeship’s probationary period. Although the Respondent failed to give the notice required under s. 60(2) of the T&E Act, the Applicant’s solicitor had demanded the Applicant’s re-employment by correspondence dated 30 September 2003. That demand having been rejected, it seemed to me, and I ruled at the time, that s. 60(4) of the T&E Act was activated and the Applicant was entitled to have his case heard pursuant to the provisions of chapter 3, part 2 of the Act. The Respondent’s evidence and contentions Although strictly out of order, in the sense the Applicant had carriage of the case and presented his evidence first, it is convenient I record the Respondent’s case before that of the Applicant because it sets out much of the material which the Applicant was called upon to respond to prior to his termination and, again, during the hearing. Ms Kim Sciacca, a Director of the Respondent, said she had been running her own child care business since 1999. She held a Bachelor of Teaching in Early Childhood, an Associate Diploma in Early Childhood and had previously been employed in the capacity of Director for various child care centres for 3 years prior to going into her own business. The Respondent purchased the Mission Beach Child Care Centre in May 2003 and took over the employment of persons then employed at the Centre. At the time of taking over the Centre she arranged a staff meeting, which the Applicant attended. She provided all staff with a copy of a “Staff Handbook” and another document entitled “Job Description” and dealt with the matters contained within those documents during the course of the meeting. She also referred the staff to a copy of her own policy manual, which she made available, and insisted they read it. Ms Sciacca said she received a telephone call from the Director of the Centre (Ms Boor) on Thursday, 25 September 2003 who informed her she had just witnessed an incident involving the Applicant smacking his child. Ms Sciacca said she was very concerned on receiving this information and immediately took steps to investigate the matter as follows: • requesting the Director to provide a statement in writing; • calling the Department of Family Services (the Department) to seek their advice in relation to her responsibilities as the licensee; and • contacting other staff at the Centre to see if they could throw any light on the incident. This involved contacting 2 other staff members, one on the Friday and the other, Ms Rebecca Galvin, on the following Monday. Ms Sciacca also said that on Monday, 29 September 2003 Ms Galvin informed her that she had witnessed, on that day, a second incident of corporal punishment which involved the Applicant smacking his son in view of the other children. Ms Sciacca said she also asked Ms Galvin to record this incident in writing. Ms Sciacca said she considered the matters to be a very serious incident of misconduct. In light of her perceived obligations as licensee and because of her concerns about the future of her business, she contemplated dismissing the Applicant. She rang Wageline and that body faxed her a document setting out advice in relation to dismissal from employment. She then prepared a letter of dismissal and decided to ring the Applicant to discuss the matter with him. That happened somewhere around 8.15 p.m. to 8.30 p.m. on the evening of Monday, 29 September 2003. In a diary note penned at approximately 9.00 p.m., following her discussion with the Applicant, Ms Sciacca recorded the following points: • she told him she had something serious to talk to him about and indicated she had received 2 reports of him smacking his son during work; • he was immediately concerned about who had said this to her. She told him 2 staff members on 2 separate occasions, one last Thursday and one today (Monday); • he said he could not remember last Thursday but he was sure it had not happened today (Monday); • she told the Applicant the incident had been described in detail to her. After water play the children were getting dressed. He was dressing his son and his son was playing around, sticking his bottom in the air and then the Applicant smacked his son’s bare bottom; • he said he did not; • she said this is a very serious issue; • she told him she thought she might need to dismiss him and he should not take it lightly; • he said he understood that. He said he used to smack his son at day care all of the time before she took over and he could even remember talking to someone, maybe Lee-Ann Boor or Max Agnew, about it but he did not do it anymore; • he said especially since doing his (Certificate III) course he understood how serious it was and he really had to watch himself; • at this point he became quite heated and began to attack the other staff saying they had something against him; • he also mentioned (inter-personal and other) issues with Lee-Ann Boor, the Director; • she said this matter was completely unrelated and any issues between he and Lee-Ann Boor were being resolved; • she said based on what the 2 staff members had reported to her and his response about definitely doing it in the past and having to watch himself, she was satisfied it happened and she would go through with the dismissal; • she read him the letter (of dismissal) she had prepared; • he became very angry and said it was unfair dismissal and he would be taking it further; • he said his job was everything to him and he had only put in the best effort; • she reminded him that her business was everything to her and she had responsibilities as licensee to provide an appropriate environment which she did not think his behaviour fitted into; -- 2 of 7 -- 1094 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 March, 2004 • she said she had called the Department who had advised her to strongly consider her responsibilities as licensee and to advise the Police and Child Protection Division; • she informed him she was not going to do that because of his personal circumstances; • he reiterated he was a good parent and the conversation deteriorated from that point, with him accusing her and the other staff; and • she ended the conversation. Ms Sciacca said that in making the decision to terminate the Applicant’s employment she took into account the following matters: • the Applicant’s admission he had smacked his child at the Centre previously; • the Applicant’s statement that he really had to watch himself (to stop himself from smacking his son); • the detailed description of the incidents by Ms Boor and Ms Galvin; • that if the Applicant had spontaneously done it before, and had difficulty controlling himself from doing it, then more likely than not he would do it again; • the fact that her licence could be terminated, and her business shut down, if she did not dismiss the Applicant; • her awareness of the many provisions in the Child Care Act 2002 (the Child Care Act) which require that she ensure that only persons of a fit and proper character are employed; • the provisions in the regulations to the Child Care Act dealing with the dignity of children, including a specific provision that child management techniques do not include physical punishment; • notwithstanding that the allegations involved the Applicant’s own child, she took the view this was not relevant to the decision she made concerning the Applicant’s employment. The hitting incidents may have been witnessed by other children, some as young as 2 years of age. Children of that age would have no appreciation of the relationship between the Applicant and the child who was receiving corporal punishment; • whilst acting in a paid position the relationship of parent and child becomes one of carer and child and as such the child under the carer’s direct supervision should be treated no differently from any other child at the Centre; • if she had not taken steps to dismiss the Applicant her Director (who had independent responsibilities under the Child Care Act) would certainly have reported her to the Department; • the advice she received from the Department and from Wageline; • her perception of the attitudes that other parents would have if no action was taken to dismiss the Applicant when it was evident he had inflicted corporal punishment upon a child at the Centre; • her concern in preserving the reputation of her business; and • the very strong line taken by the regulating bodies referred to in the Child Care Act, Child Care Regulations and the National Child Care Accreditation Council handbook that forbids physical punishment in any form, or any behaviour that frightens or humiliates children. Ms Lee-Ann Boor is the Director of the Centre. Her qualifications include a Diploma in Early Childhood and she is also a first year undergraduate in a Bachelor’s degree in Early Childhood/Pre-Service with Queensland University of Technology. She has been employed in the child care industry for approximately 11 years and was an assistant director/group leader for a period of approximately 5 years before taking up her current employment. Ms Boor said that around mid-morning on Thursday, 25 September 2003 she was walking from the playground area onto the patio to go inside the Centre when she heard the Applicant’s son crying. His son was standing in the tiled shower area with the Applicant, who was hosing him. She saw and heard the Applicant hit his son on the bottom to which the son responded by crying out loudly. Immediately following that incident the Applicant’s son was hiding in the outside shed on the Centre’s premises crying and yelling at other children to “go away” when they approached. At this time the Applicant’s son was still naked from having been showered. Ms Boor said, in her opinion, it was totally inappropriate and unacceptable to inflict corporal punishment on children in child care centres. As a form of discipline corporal punishment was very unacceptable given the alternative methods of discipline that may be utilised. It was a policy of the Centre to actively teach and encourage children that violence was an inappropriate method of resolving disputes. She believed it was a widely held view within the child care industry that corporal punishment was totally unacceptable and inappropriate and centres regularly received information from government and non-government support agencies to that effect. Ms Rebecca Galvin said she was employed at the Centre in the capacity of child care group leader for a period of approximately 6 months from May 2003 to November 2003. Her qualifications included a Diploma in Community Services (Children’s Services) Centre Based Care from a college of TAFE. She was also a third-year undergraduate in a Bachelor’s degree in Early Childhood Education at the University of South Australia. During her diploma course she received extensive practical training and experience in 6 to 7 centres as part of the practical component which had to be undertaken during the 2 year duration of that course. She said that on Monday, 29 September 2003 she witnessed an incident involving the Applicant and his son at approximately 12.00 noon. A number of the children at the Centre had just finished water play and most of them were already changed and were preparing for lunch. She was outside cleaning up the play area and the Applicant was drying his son. His son was bending over with his bottom up in the air and the Applicant was telling him, in a fairly firm voice, to stop being silly. She then witnessed the Applicant smack his son across the bottom quite hard and she noticed his son was crying as the Applicant was dressing him. A number of children had witnessed the incident. Ms Galvin said she reported the incident to the Director of the Centre who advised her to contact the owner. She contacted Ms Sciacca and reported the incident to her. Ms Galvin opined it was totally inappropriate to utilise corporal punishment in disciplining children in child care centres, irrespective whether the child was your own. Ms Tanya Holliday said she was presently employed at the Centre in the capacity of assistant child care worker. Between July 2003 and September 2003 she was employed on a relief basis. From October 2003 she had been employed on a permanent part-time basis, effectively as a replacement for the Applicant. Ms Holliday said her qualifications include a Bachelor’s degree in Community Welfare and she was also presently enrolled in a traineeship which would lead to a Child Care Certificate. She had previously been employed as a family support worker for the Cardwell Shire Council Community Support Centre for a period of 3 years. She had also worked for the Cardwell Shire Council as the youth development officer for a period of 7 months. Ms Holliday said she witnessed an incident involving the Applicant during the week of 15 to 19 September 2003. The incident occurred at the Centre at approximately 2.30 p.m. to 3.00 p.m. during the children’s afternoon tea period. She was standing outside in the playground area with full vision of a toilet doorway so that she could view the children in the bathroom. She saw the Applicant lead his son from inside the Centre, through the bathroom, to the outside play area. -- 3 of 7 -- 26 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1095 The Applicant had hold of his son’s left arm with his left hand and was forcefully leading him through the Centre. She witnessed the Applicant, with his right hand at approximately shoulder height, smack his son on the bottom with unreasonable force and subsequently release hold of his son’s arm out the door. A number of children witnessed the incident. Ms Lynn Kaesehagen is a Community Resource Officer (Authorised Officer) with the Department of Family Services, Cairns Area office. She said the appropriateness of inflicting corporate punishment was not directly addressed in the Child Care Act. However, taking reasonable steps to protect children from harm is the responsibility, both ethically and legally, of adults. The Department defined “harm” as actions that might have a detrimental effect on a young person’s physical, psychological or emotional well being. This included not only harm inflicted on an individual child but also those children who witness the harm. Ms Kaesehagen also said that under s. 75 of the Child Care Act licensees have an overriding responsibility to conduct a child care service in a way that has sufficient regard to the guiding principles of the Act. In particular, the licensee must conduct the service in a way that ensures the immediate and on- going safety of children in care and promotes their well being. The Department takes the protection of children very seriously. If a licensee does not meet the minimum standards to provide a safe environment for children, the licensee may incur fines specified under the Act. In the event of a child being harmed by a staff person at a licensed child care service, the Department would have an expectation that the licensee of the Centre would take immediate action to ensure a safe environment for all children and take steps to ensure the behaviour would not continue or be repeated. According to Ms Kaesehagen’s diary, Ms Sciacca contacted her on Tuesday, 30 September 2003. The diary entry recorded Ms Sciacca as having provided information relating to a staff person at the Centre who, according to Ms Sciacca, had smacked a child. The discrepancy in this date was picked up by Mr Lee, solicitor for the Applicant, who suggested in his cross-examination of Ms Sciacca, and in his submissions, that Ms Sciacca had not contacted the Department on 29 September 2003, as alleged, but, rather, on the following day after the Applicant’s dismissal. Notwithstanding the date shown in the diary entry I, nonetheless, accept Ms Sciacca’s evidence that she spoke to the Department on 29 September 2003 and sought their advice and guidance about how she should deal with the issue before her. I closely observed her when she was cross-examined on this point and I believed her evidence. Ms Patricia Belcher, in an unchallenged statement filed by the Respondent, said she was the owner and licensee of the Forest Beach Child Care Centre. She had been the owner and licensee for approximately 8 years and the Director for the past 5 years. Ms Belcher expressed the view it was completely unacceptable to utilise corporate punishment in the discipline of children in child care centres. Within her own centre, there was a “no-smacking” policy which applied to any person – parent or staff member – who entered the centre. In Ms Belcher’s view the use of physical force in disciplining children was viewed as inappropriate in the child care industry. There was a trend in many centres, including her own, to adopt positive behaviour management strategies where children’s strengths and attitudes were praised and encouraged, rather than utilising regressive physical/emotional means of discipline. She said her centre was also under strict reporting obligations to the Department in the event that physical/mental harm was inflicted upon any child in the centre. She said this was in accordance with the provisions of the Child Care Act and accompanying Regulations. Mr Ryall, who appeared for the Respondent, referred the Commission to the decision in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 and said the Respondent’s evidence should satisfy the Commission it conducted an extensive investigation into the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; gave the Applicant a reasonable opportunity to answer the allegations and respond; and, after all that, honestly and genuinely believed there were grounds for dismissal on the basis the employee was guilty of the misconduct alleged. Further, the Respondent was entitled to decide, after taking into account mitigating circumstances, either associated with the misconduct or the Applicant’s work record, that the misconduct justified his dismissal. Mr Ryall also submitted if the Commission found against his client it would be impossible to reinstate the Applicant. Following his termination he had attempted to fight his dismissal in the area of public opinion by approaching many of the parents of the children who were enrolled at the Centre and well as placing a public advertisement in the newspaper. Irrespective of the outcome of the Commission proceedings, everyone in the local community would have their own opinion about the case. Further, the Respondent no longer trusted the Applicant and it will be difficult to establish any working relationship because of that mistrust. The Applicant’s evidence and contentions The Applicant said he was very sensitive to the fact that his young son, and occasionally his school aged daughter, attended the Centre. He was also very conscious of their need to be well behaved at the Centre, being his own children. On one occasion his son had been naughty and he smacked him. Subsequently, he raised the matter with the then proprietor, Mr Agnew, who told the Applicant that his children should be treated no differently to any other child at the Centre and, in those circumstances, were not to be smacked by way of discipline. The Applicant claimed to have strictly observed that policy since the discussion with Mr Agnew. The Applicant said Ms Sciacca telephoned him around 8.30 p.m. on 29 September 2003 and gave his recollections of the conversation as follows: • she described some incident involving water play but he certainly could not recall her referring to his son sticking his bottom in the air; • she did allege that he had smacked his son after water play and he most strenuously denied it; • he told her that on one occasion previously he had smacked his son at the Centre, and discussed it with the previous owner, and said he did not do it anymore. He did not mention Ms Boor, the Director, in that context; • since Ms Sciacca took over the business he had completed the Certificate III course in child care and was very aware of the standards required; • he never said to Ms Sciacca that he had to watch himself; • he never became heated, although he was surprised and a little upset at receiving the telephone call late at night; • when Ms Sciacca said that things were going well between he and the Director, he responded that was most definitely not the case; • he denied becoming angry and referring to the event as an unfair dismissal; • he did not understand the significance of that term at that time and it was not a term that he would have used; • however, he did say he would be getting legal advice and taking it further; • he told Ms Sciacca she had left him no other choice; • he did tell her that he was a good parent; • he did not believe the discussion deteriorated. He simply said words to the effect “thank you for your past support anyway” and ended the discussion by saying goodbye before he hung up the telephone; and • Ms Sciacca did tell him during the discussion that the Department had told her to dismiss him and to report the incident to the Department itself and to the Police. -- 4 of 7 -- 1096 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 March, 2004 The Applicant specifically rejected the allegations raised by Ms Boor. He disputed that the children had been engaged in water play on the morning of the alleged incident and said that there was no showering or hosing incident. His son did not misbehave that day and he certainly did not smack him. In relation to the incident alleged to have occurred on 29 September 2003, he said he was showering his son that afternoon after water play and acknowledged that his son did cry because he had to wash the grass off his son’s head (he had tightly knitted hair) and his son did not like getting his head wet. He specifically rejected the allegation that he smacked his son. The Applicant also strenuously denied that the incident referred to by Ms Holliday took place. He said he had received no notification from any person at the Centre about any alleged incident that took place during that period. The Applicant also disputed he had been provided with some of the documents referred to by Ms Sciacca. He said one book, the “Parent Family Hand- book”, was available at the Centre but he was never asked to read it. The document entitled “Policy Handbook” was shown to him, by the Director, on the Friday afternoon before he was dismissed and he was asked to read it. In his statement in reply the Applicant said that although he had not read the policy manual prior to his termination he was “well aware that it has always been the policy in the child care centre not to use corporal punishment with respect to children at the centre”. A little further on the Applicant said “I am fully aware that any form of corporal punishment is totally unacceptable and have conducted myself at all times accordingly.”. The Applicant also said he did not “for a moment” dispute the standard espoused by Ms Belcher (above) and had, at all times since being employed by the Respondent, tried to maintain and in fact exceed those standards in his own level of child care. Mr Max Agnew was the owner of the Centre during the period October 1998 until May 2003, when he sold the Centre to the current Respondent. Mr Agnew remembered a time, some weeks after the Applicant commenced employment, when the Applicant indicated he was having difficulty handling his young son who, when the Applicant was around, seemed to demand his attention. The Applicant discussed the disciplining of his son. He said that when his son was naughty at home he did smack him on occasions. Mr Agnew explained that under no circumstances could the Applicant smack his son at the Centre because all of the children had to be treated the same and corporal punishment was “not an option” at the Centre. Mr Agnew said he never heard nor saw the Applicant smack his son, or any other child, while he was employed at the Centre. Further, no other staff member raised that issue with him. Mr Agnew also said the Applicant was at all times aware, after the above discussion, that he must never smack his son at the Centre notwithstanding the fact that he indicated he would, from time to time, smack him for being naughty at home. Mr Agnew said in relation to that matter he told the Applicant his method of disciplining of his son at home, in his own time, was his own decision, but at the Centre it had to be done without any smacking. Unchallenged character references from a Ms Dorante, Ms Haratsis and Ms Campbell were also filed on behalf of the Applicant. Because the contents of these affidavits do not go to the issues in dispute, I simply note their contents but otherwise do not deal with them. Mr Lee, on behalf of the Applicant submitted that the termination was unfair because he had been a loyal, dedicated and hardworking child care worker who had been given no warnings prior to the telephone call from Ms Sciacca on the evening of 29 September 2003. Mr Lee said Ms Sciacca had put herself in the position of “judge, jury and executioner” and had decided prior to the telephone conversation that she was going to terminate the Applicant without fulfilling her statutory duty of warning him or giving he Applicant the opportunity to discuss the issue with other members of staff. Mr Lee also submitted that the termination was harsh because it would impact the Applicant’s employment opportunities, which were fairly limited within the area of his residence. Mr Lee sought the Applicant’s reinstatement to his former employment or the maximum 6 months compensation permitted by the legislation. Findings In reaching my decision in respect of this matter I have paid regard to all of the evidence and submissions, although they may not have been specifically referred to in the decision. In particular, in reaching my decision, I have paid particular regard to the demeanour of the respective witnesses and the way they reacted to, or responded to, various questions put to them. Generally, I preferred the evidence of the witnesses for the Respondent over the evidence of the Applicant. In particular, I preferred Ms Sciacca’s account of the discussion between she and the Applicant on the evening of Monday, 29 September 2003. Ms Sciacca was relaxed, open and engaging during the whole of her evidence and I believed she was telling the truth. I accept her evidence, unreservedly, that the diary note of the conversation with the Applicant was written contemporaneously and that she included one particular point (about the thought that she might need to dismiss him) on the evening as she was reading through the document. I thought she responded honestly when she was challenged about the inclusion of that point and my own reservations about the addition of the extra words were immediately satisfied upon hearing her explanation but, more particularly, from the way she gave that explanation. I also thought that the other Respondent witnesses who gave evidence in person were open, credible and believable and, accordingly, I accept their evidence that they witnessed 3 different incidents where the Applicant smacked his son. These 3 incidents were: • in the week of 15 to 19 September 2003, witnessed by Ms Holliday; • Thursday, 25 September 2003, witnessed by Ms Boor; and • Monday, 29 September 2003, witnessed by Ms Galvin. While the incident witnessed by Ms Holliday only came to the Respondent’s knowledge after the Applicant was terminated, it serves to confirm a pattern of behaviour engaged in by the Applicant in a relatively short period prior to his termination. While Ms Holliday was accused of having fabricated her story, in order to obtain permanent employment, the allegation did not stand up to scrutiny. The Respondent was not aware of the 15-19 September 2003 incident prior to the Applicant’s termination and Ms Holliday could have gained no benefit from raising it when she did because the Applicant had already been terminated by that time. I believed her evidence about the incident. Ms Boor seemed to have been genuinely shocked by the behaviour she witnessed – saying she felt nauseous – and said she did not know how to confront the Applicant about it because she was scared of his reaction. Having witnessed the Applicant give evidence I can understand her apparent concern. Although he spoke about himself as being a quiet and polite person – and mostly presented as such – at times the Applicant’s body language, and general demeanour, painted a different picture. At times during his cross-examination he became quite vocal and argumentative and clearly struggled to keep his anger under control. Accordingly, given the history that had passed between them, I can understand why Ms Boor chose to raise the matter with the Centre’s owner, Ms Sciacca, rather than confront the Applicant about the incident. I believed Ms Boor’s account of the whole incident on 25 September 2003 and her explanation about why she had not confronted the Applicant. -- 5 of 7 -- 26 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1097 Ms Galvin had absolutely no personal interest in the outcome of the proceedings. She had left the Respondent’s employment some months before the trial and had no continuing relationship with the Respondent. Importantly, she said she had been a friend of the Applicant’s during her period of employment. However, that fact did not stop her from reporting the third incident to Ms Sciacca when she observed it happen on 29 September 2003. I believed all of Ms Galvin’s evidence. By contrast with the Respondent’s witnesses I did not find the Applicant to be a particularly credible witness. He was tense and looked uncomfortable when the allegations he had smacked his son were raised with him, becoming quite stiff in the body and clenching and unclenching his jaws. I simply did not believe his evidence that he had not smacked his son on the 3 occasions alleged. Because of my acceptance of the evidence of the witnesses for the Respondent I have not found it necessary to make specific findings about whether the children in the Centre were using a water slide on 25 September 2003 or whether there was an incident book in existence after the Respondent took over the Centre. However, it is implicit in my decision to prefer the evidence of the Respondent’s witnesses over that of the Applicant that I have accepted that the water slide was in use on Thursday, 25 September 2003. The existence, or otherwise, of an incident book is not material to the findings I have made. If it did exist, and the smacking incidents were not recorded, that neither proves or disproves anything. It is simply a matter between the Respondent and the Department. The same comment applies if there was no incident book or incident record. Finally, I record that I accept Ms Boor’s evidence about the lack of activity sheets for the week of 22 to 26 September 2003 because the program for that week was written up on the whiteboard. I reject the general contention on behalf of the Applicant that the sheets were destroyed because they would have disproved the allegation that water play occurred on 25 September 2003. Conclusions It has been widely accepted (in Sangwin v Imogen Pty Ltd (1996) (unreported) SA 95/116 IR which was in turn relied upon by Hall CC (as he then was) in Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108; Trevanion v Tricare Limited (1998) 157 QGIG 57 (Bougoure C); Cullen v Gold Coast Nursing Home (1998) 157 QGIG 128 (Bloomfield C) and Howell v John Bennell’s Discount Fuel (2001) 167 QGIG 53 (Blades C)) that the general test in circumstances where an employee is accused of misconduct is that set out in Bi-Lo Pty Ltd v Hooper (supra) at 229-230 as follows: “Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto, and that having done those things the employer honestly and genuinely believed and had reasonable ground for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable. If a fact or facts come to light subsequent to the dismissal which cast a different light on the commission of the alleged misconduct, such fact or facts will not necessarily or automatically render the dismissal harsh, unjust or unreasonable. In our view in such circumstances what will need to be considered is whether the employer, if it had acted reasonably and with all due diligence, could have ascertained those facts before the dismissal occurred. The Commission is required to objectively assess the subjective actions and beliefs of the employer as at the time of dismissal and not at some subsequent time. See Gregory v Philip Morris (1988) 24 IR 397 at 413; see also Stearnes v Myer SA Stores (unreported, SA Industrial Relations Commission, Print No 9A/1973) at p5. Whether the employer will satisfy that objective test will depend upon the facts of each case. The gravity of the alleged offence will dictate the nature and extent of the enquiry which the employer must conduct. An employer must ensure that an employee is given as detailed particulars of the allegations against him/her as is possible, an opportunity to be heard in respect of such allegations, and a chance to bring forward any witnesses he/she may wish to answer those allegations. We do not wish to be understood to say that there may never be cases where the conduct of the employee is so obvious that the Commission will still be able to be satisfied that the dismissal did not come within the statutory criteria, notwithstanding that all proper procedures were not followed. Those cases will probably be exceptional. However again each case must be decided on the particular facts which emerge although we emphasise that the need to follow proper procedures cannot be understated.”. In this case the Respondent, on 29 September 2003, entertained a genuine belief, after reasonable enquiry with the 2 employees who made the allegations, that the Applicant had smacked his son on the bare bottom on 2 occasions, namely 25 and 29 September 2003, respectively. The Respondent put the allegation to the Applicant and advised him it was thinking about dismissing him from employment. The Applicant acknowledged he knew it was contrary to the Centre’s policy to use corporal punishment on children but rejected the allegations that the alleged events of 25 and 29 September 2003 had occurred. However, in doing so, he admitted having smacked his child previously at the Centre and expressed the view “he really had to watch himself”, i.e. to stop himself from smacking his child. In my view, the Respondent was entitled to weigh the allegations from 2 independent sources against the Applicant’s denials, his admissions about past conduct and his comment he really had to watch himself and to decide, in all of the circumstances, that the Applicant had, on the balance of probabilities, acted as alleged. All that has happened since 29 September 2003 has simply served to confirm the validity of the Respondent’s decision to prefer the account of the initial 2 witnesses over the denials of the Applicant. Firstly, Ms Holliday informed the Respondent of a third allegation several weeks after the Applicant’s termination, upon her return from holidays. Secondly, the evidence given in these proceedings, and my findings in relation to the matter, has confirmed that the misconduct did occur. The evidence given in these proceedings establishes the following facts: • the Applicant knew it was inappropriate to apply corporal punishment to any child at the Centre and that that behaviour would not be tolerated; • the Applicant knew that his son had to be treated in the same way as any other child enrolled at the Centre; • the Applicant was witnessed applying corporal punishment to his son on 3 occasions in the 2 weeks or so prior to his termination; • the Applicant admitted to Ms Sciacca that he had “to really watch himself” to stop himself from hitting his son; and • the Applicant continues to deny that he smacked his son at the Centre at any time after his discussion with Mr Agnew, shortly after his employment commenced. -- 6 of 7 -- 1098 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 March, 2004 In reaching my decision (below) about whether the dismissal was harsh, unjust or unreasonable, I have considered the above facts and have also taken into account a letter to the Applicant – provided during the discovery process – which is Attachment KS2 to the statement of Ms Sciacca. That letter provides a reference to Mr Cantwell but also contains the following comment: ”Troy, I was extremely surprised to learn of the allegations made against you and encourage you to follow due process to ensure the matter is fully investigated. As I discussed with you I would immediately remove my child from someone who used hitting as a form of discipline. I am an assertive parent and have always raised concerns directly with the staff and Management at MBCCC when they have come to hand. I have never had a reason to be concerned about your interactions with my child. It troubles me also that the allegations includes 2 instances of hitting. I cannot understand why, if there are reliable witnesses, you were allowed to remain in the employment of the Centre. I agree that corporal punishment is totally inappropriate and as we have discussed I would be unwilling to write this reference if I believed you felt this was an appropriate form of discipline for children.”. That piece of correspondence substantiates the concern expressed by Ms Sciacca about the potential impact on the operations of the Centre if she did not move to effect the termination of the Applicant’s employment. The parent who wrote the letter made her views extremely clear about how she thought someone guilty of hitting a child should be treated and what she would do, as a parent, with her own child in such circumstances. Although there were no prior warnings, the nature of the incidents, the risk of re-offence and the potential ramifications for the Centre if immediate action was not taken justify the decision to terminate. The Applicant has the onus of establishing that the termination, in all of the circumstances, was harsh, unjust or unreasonable. Taking everything into account, the Applicant has simply failed to convince me that his dismissal, in all of the circumstances, was harsh, unjust or unreasonable. He knew the form of behaviour he engaged in was inappropriate, both from his earlier discussion with Mr Agnew and from his participation in the Certificate IIII course. However, he simply could not control his behaviour insofar as his son was concerned. Further, the Respondent was entitled to believe he might re-offend. In the circumstances, the Respondent simply had no option other than to dismiss the Applicant. It did this in accordance with the statutory requirements after putting the allegations to the Applicant, giving him a chance to respond and weighing his responses against the very credible and specific allegations which had been made by 2 other persons. For all of the foregoing reasons, the application is dismissed. I reserve the question of costs. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2004 28 January 12 February Appearances: Mr T. Lee, of Lee & Co, for the Applicant. Mr C.J. Ryall (Counsel), instructed by Mr C. Kahler, of Vandeleur & Todd, for the Respondent. -- 7 of 7 --