DECISION NO:542/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - LAWFUL TERMINATION - whether valid reason - MISCONDUCT - PROCEDURAL FAIRNESS - whether applicant granted opportunity to deal with allegations.
Industrial Relations Act 1988, s 170DE(1) and s 170DC.
No. ACTI 1265 of 95
SHARON LEIGH WADEY v. Y.W.C.A. CANBERRA
CORAM: MOORE J
PLACE; CANBERRA
DATE; 12 NOVEMBER 1996
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. ACTI.1265 of 1995
)
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY )
BETWEEN: SHARON LEIGH WADEY
Applicant
AND: Y.W.C.A. CANBERRA
Respondent
CORAM: MOORE J
PLACE: CANBERRA
DATE: 12 NOVEMBER 1996
REASONS FOR JUDGMENT
MOORE J:
Introduction
This matter is a review of a decision of a Judicial Registrar who dismissed an application by Ms Sharon Leigh Wadey brought under s 170EA of the Industrial Relations Act 1988 ("the Act"). Wadey alleged that her employment with YWCA Canberra ("the Association") was terminated by the Association on 21 July 1995 in contravention of provisions of the Act.
The review was conducted as a hearing de novo and oral evidence was called and cross-examination undertaken of the witnesses. Exhibits which had been tendered before the Judicial Registrar were treated as evidence in the review. Further exhibits were tendered.
The matter concerned events leading to the resignation of Wadey from her employment as a childcare worker at a childcare centre ("the Centre") operated by the Association in Campbell in the Australian Capital Territory. While, in form, the termination of her employment arose from a letter of resignation it was common ground that there had been a termination at the initiative of the employer. I will deal with the evidence concerning the relevant events shortly. Briefly stated, they involve an incident in which Wadey placed tape over the mouth of a child under her supervision at a time when the child was misbehaving. Several days after the incident and after discussion of the matter between Wadey and the director of the centre, Ms Maree Lehmann and Lehmann and others, Wadey tendered her letter of resignation.
The issues
Before dealing with the evidence in detail it is convenient to identify the issues. Two issues arise concerning the liability of the Association. The first is whether the Association had a valid reason for terminating Wadey's employment which was connected with Wadey's conduct: see
s 170DE(1). The second was whether Wadey was given an opportunity to defend herself against the allegation made about her conduct prior to her termination: see s 170DC. At the time the matter was first heard by the Judicial Registrar, when the evidence was led in the review on 16 July 1996 and when submissions were made orally on 2 September 1996 there was available to Wadey the provisions of s 170DE(2) which rendered invalid a termination by reference to criteria that arguably had application to her termination. However on 4 September 1996 and before judgment was given, the High Court determined in State of Victoria & Ors v The Commonwealth of Australia that s 170DE(2) was not a valid law of the Commonwealth. Further written submissions were made by the parties concerning the effect of the judgment of the High Court. I proceed on the basis that s 170DE(2) no longer has application to these proceedings. If the termination was in contravention of either s 170DE(1) or s 170DC an issue arises as to what remedy, if any, should be ordered. Reinstatement is sought.
The evidence
Much of the evidence was not contentious. The contentious evidence which is material concerned, firstly, the critical incident concerning the treatment of the child and, secondly, a meeting between Wadey and Lehmann on 19 July 1995. I will shortly describe the material evidence of the witnesses, Wadey, Lehmann and Ms Ivan Spicer, consider the contentious evidence and indicate what findings I make. The recitation of non-contentious evidence constitutes findings I have made.
Wadey was employed as a Level 4 Child Care Worker at the Centre. Wadey was, at the relevant time, working in both the pre-school room and toddlers' room. The latter was for children aged 18 months to 3 years and the former for children between 3 and 5 years.
Wadey gave evidence that on 13 July, 1995 when working in the pre-school room, a three year old child, Millie Evans, began screaming after she was asked by Wadey's assistant, Ms Leanne Crampton, to wash her hands for morning tea. She then threw herself on the ground and began kicking her legs. Crampton attempted to pick Millie up and remove her from the room. She was unable to do so as Millie was kicking and screaming so much that she could not be moved. At this point, Wadey approached the child, crouched down, and asked her what was wrong and said to her to calm down. Millie told her to shut up and continued kicking. Wadey gave evidence that she then sat on the floor and bent her leg over the top of Millie's legs, so that Millie's kicking hit only Wadey's leg. She said she did not exercise any pressure on Millie's leg or any part of her body. Wadey continued to ask Millie to calm down.
About five minutes after the incident commenced Millie was still screaming and Wadey says that she asked the child:
"Would you like me to put a piece of tape over your mouth so you can stop screaming?"
She then walked over to a bench and obtained a 10cm piece of masking tape. She returned to Millie, sat down and put her leg back over the child's legs. Millie started to push Wadey away. Wadey took hold of the child's hands and placed the tape over Millie's mouth, from below the left of her nose to the right of her chin. She did so, she said, "gently in a loose loop fashion". Wadey said that Millie calmed down within about 30 seconds. Wadey then removed the tape.
I should note that the incident was likely to have been seen by both Crampton and Ms Michelle Franklin, another childcare worker at the centre but neither was called by the Association to give evidence. Statements of each provided to Lehmann in the following days were tendered by the Association but not as proof of the truth of their contents. I should set out the text of Crampton's report:
"To whom it may concern,
On Thursday 11 July, 95, I asked Millie Evans to hop out from around the corner in the Pre-school Room, and was told to 'shut-up' by Millie. I responded by telling her that it was not a nice thing to say, and as I was repeating this, Sharon Wadey came over and proceeded to hold Millie down and then threatened to 'tape her mouth shut'. Millie continued to cry and was visibly very upset. Sharon then continued to tape her mouth shut with two pieces of tape (clear). All of the other pre-schoolers, by this stage, had come over to Millie & Sharon and were watching + laughing and not being discouraged not to laugh. After about 5 mins of Millie's mouth being taped she nodded that she would apologize. When the tape came off I sat with her and she eventually said 'sorry'. It took Millie a long time to say sorry as she was clearly very distressed.
Leanne Crampton
20.7.95 "
Wadey was cross-examined about the incident. Some of her evidence was, in my opinion, not entirely credible. The import of Wadey's evidence was that she initially placed her leg over Millie's leg so Millie would not hurt herself and other children. Yet Wadey was prepared to get up, get the tape and return notwithstanding that the child's conduct remained unaltered and that this occurred when other children were standing and watching. She also said, in cross-examination, she only had her leg over Millie when she was putting the tape over the child's mouth which was contrary to the evidence she deposed to, in chief, in her affidavit.
However her account of the incident is the only account by a witness who was directly involved. Wadey made a written report which is in evidence and there is also evidence of conversations she had with Lehmann in which Wadey said things about the incident. Wadey also signed a document prepared by Lehmann purporting to record a conversation they had about the incident. This evidence might constitute evidence, by way of admissions, of what occurred. However it provides no detail of the material events. Thus the only detailed evidence of what occurred on 13 July 1995 was the evidence given by Wadey. Not only does the failure to call Crampton and Franklin bring into play the principle in Jones v Dunkel (1959) 101 CLR 298 but leaves, as proof of the conduct upon which s 170DE(1) operates, only the evidence of Wadey. I will return to this matter in due course and, for the moment, continue to discuss the evidence of Wadey.
Wadey's evidence was that during the incident, she felt she was acting appropriately. The child was upset before Wadey approached her. Wadey hoped that the tape would encourage Millie to calm down and then explain why she was so upset. The import of an answer given in cross-examination was that she immediately realised she had made a mistake and that directly after the incident she spoke to Millie and the other children and told them that she had made a mistake. She told the court:
"[T]he situation had calmed down and I realised that it is not good to put tape over somebody's mouth. It is not appropriate."
Wadey said that she was in complete control of her actions throughout the entire incident and felt as though it was an action of last resort. In evidence she stated:
"[I] believe at the time I did have a good idea of child care practices. In hindsight now, I believe that action was inappropriate."
Wadey did not report the incident to her supervisors at the Centre nor to Millie's parents, that day or subsequently.
On the morning of Wednesday 19 July, the matter was first reported to Lehmann by Franklin. Lehmann asked Franklin to prepare a written report of the events, but she could not recall whether she received this document before or after speaking about the incident to Wadey. Lehmann also spoke to Crampton about the matter that morning. There was a discussion between them about the incident and Lehmann asked Crampton to prepare a report. I earlier set out the text of the report which appears to have been given to Lehmann the following morning. I infer, however, that the substance of what was in the report was communicated to Lehmann on the morning of Wednesday 19 July. That this occurred is consistent with evidence given by both Lehmann and Wadey concerning what was said at a meeting between them later that day which I discuss shortly.
At some point later in the morning of Wednesday 19 July, Lehmann spoke to Spicer about the matter. During the course of that conversation Spicer indicated that, in her view, Wadey should be dismissed. It is to be noted that at this stage neither Lehmann nor Spicer knew of Wadey's account of what occurred. That remained the position when Lehmann spoke to a Ms Fiona Baker of Childrens' Day Care Services which is a government agency regulating childcare centres in the Territory. After discussing the matter Baker said the action constituted a breach of the licensing conditions concerning the Centre and its seriousness constituted a ground for dismissal. Lehmann then attempted, unsuccessfully, to contact a Ms Lyndall Ryan from the Australian Liquor, Hospitality and Miscellaneous Workers Union which represented childcare workers in the Territory.
Shortly after 2.00pm on Wednesday 19 July, Lehmann called Wadey into her office and discussed the matter. Of some significance is what was said by Lehmann and whether Wadey was given an opportunity to answer the allegations which, by this time, had been made to Lehmann concerning her conduct on 13 July. Wadey's account in her affidavit was that Lehmann told Wadey that she had received a report about abuse of a child and invited Wadey to tell her about it. She then gave Lehmann an account which substantially accorded with the account she gave in her evidence in these proceedings though it was in a slightly more summary form. After doing so, according to Wadey, Lehmann then indicated she had been told that Wadey had sat on Millie. Wadey responded by saying that she hadn't been sitting on Millie and had her leg over Millie's leg. Lehmann then said that she had heard that Millie had had sticky tape on her mouth for 5 minutes. Wadey responded by saying that it had not been for more than 30 seconds. Wadey had earlier indicated, when explaining the incident, that she had used a piece of masking tape.
It can be seen from Wadey's evidence that three critical matters were raised with her which arose from the difference between her account and the account of Crampton and Franklin. While Franklin's written account has not been set out in this judgment it included an allegation that Wadey held Millie down by sitting on her. The critical matters are these. The first was that Wadey was alleged to have sat on Millie, the second that she used sticky tape to tape her mouth and the third that the tape was on her mouth for 5 minutes. The only material matter, on Wadey's account, that was not raised directly with her was whether the effect of placing the tape on the mouth was to tape the mouth shut.
Lehmann's account of their conversation in her affidavit differed from that of Wadey. Indeed, Lehmann's account does not involve her putting to Wadey that the tape was on Millie's mouth for 5 minutes. Lehmann's account was of a conversation in which Lehmann initially told Wadey she had received a report that the previous Thursday, Wadey had held Millie down and placed sticky tape on her mouth. Lehmann asked if it was true, Wadey said it was and then asked who had made the report. Lehmann said she was going to keep that information confidential. Lehmann then said it was abuse and that she was seeking advice as to how to handle the matter. A little later, Wadey said she was not out of control at the time. There was a discussion about the process Lehmann had followed in investigating the matter. During that discussion Lehmann said she had been advised by Childrens' Day Care Services that it warranted instant dismissal.
I should refer to two other matters that bear upon which account of the meeting should be accepted.
According to Wadey, Lehmann told her during the meeting to take the rest of the day off. Lehmann gave contrary evidence and said she told Wadey to take the following day off work as "time in lieu". Wadey says she was very upset after the meeting and went home. She said she believed she would not have been able to discharge her duties during the afternoon following her meeting with Lehmann. According to Wadey's evidence, she did not work on the afternoon of Wednesday 19 July. A completed and signed timesheet for that date records that Wadey worked the full day. However, Wadey gave evidence that it was normal practice at the centre to complete the timesheets for the whole day in the morning as work commenced. Lehmann says her decision to instruct Wadey to take the Thursday off work, but not the Wednesday afternoon, was based on her belief that there was no threat to any children on the Wednesday afternoon as Wadey was working in the toddlers' room rather than the pre-school room where the incident had occurred. Further, Millie did not attend the centre on Wednesdays, though Millie would be at the centre on the Thursday.
Wadey said that during the meeting with Lehmann on 19 July, Lehmann asked her to sign a pre-prepared document, which is in evidence, outlining the events of 13 July. Wadey signed the document. Lehmann gave contrary evidence, stating that the report Wadey signed was prepared at the conclusion of her meeting with Wadey, but while Wadey was present and preparing her own report. Wadey's report is in evidence. Wadey said she prepared it after leaving the meeting, which was in Lehmann's office, and returned to Lehmann's office to give her the report.
There is no obvious basis for preferring one account of the meeting over the other. When giving evidence Lehmann impressed me as a mature and responsible person who was endeavouring to answer questions truthfully. While she was given the opportunity, during cross-examination, to adopt Wadey's version of what was said at the meeting, she did not do so. Wadey, when giving evidence, did not create the same positive impression as Lehmann. I have already referred to one instance where Wadey gave evidence contradicting earlier evidence about whether she had her leg over Millie's legs prior to getting up and getting the tape.
An objective indication of which account should be preferred is found in the record prepared by Lehmann of the meeting which was signed by Wadey. In the concluding paragraph Lehmann records:
"I suggested that Sharon may need to take tomorrow off work."
Wadey says that she had no option but to co-operate and sign the document. Even if that is so it is curious that Lehmann would have made reference to Wadey not working the following day, rather than not working the afternoon, if it was something she did not intend to raise, if the document was prepared beforehand, or had not raised, if the document had been prepared at the conclusion of the meeting. It was really a non-contentious matter of detail that has only assumed, it appears to me, any significance because there are differing accounts of what was said and what happened during the afternoon.
In my view it is likely that the document signed by Wadey and prepared by Lehmann records what Wadey was told. That is, she was told she might need to take the following day off work. That this aspect of the conversation reflects the evidence of Lehmann suggests that Lehmann's version in its entirety is likely to be more accurate. I should add that Lehmann's version, viewed as a whole, appears to me a more credible account of what occurred and the version given by Wadey appears more structured and designed to pay regard to events as Wadey has to come to know of them.
Lehmann gave evidence that later that afternoon she spoke to Ryan from the Union. That evening Lehmann discussed the matter with Spicer and reached the conclusion that Wadey should be dismissed. Her evidence-in-chief given orally was that the decision to terminate was not made till 8.45 that evening. That evidence was not, in my view, shown in cross-examination to be false.
On Thursday 20 July, Lehmann spoke to Wadey early in the morning by telephone and said the Association:
"[R]egarded the action as so serious that we would like you to resign. If you do not resign, you will be dismissed."
Wadey replied:
"Don't worry, I'll resign."
Wadey did not work on either Thursday 20 July or Friday 21 July. She tendered a written resignation on Friday 21 July effective that day. There was evidence about a meeting involving Wadey, her mother, Ryan and Spicer. There was an issue about whether that occurred on Thursday or Friday but when it occurred, in my opinion, is not material nor is what occurred at the meeting. I say that because the decision to terminate was made on the evening of Wednesday 19 July and effectively communicated to Wadey the following morning.
Conclusion - Section 170DC
Section 170DC provides:
"An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:
(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b) the employer could not reasonably be expected to give the employee that opportunity."
In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.
In the present case Lehmann met with Wadey. Lehmann drew to Wadey's attention the fact that an incident had been reported to her and gave Wadey the opportunity of responding. It would have been clear to Wadey that the termination of her employment might result from Lehmann's investigations. It may be accepted that on Lehmann's account of what occurred at the meeting, which I have accepted, all the particulars of the allegation were not put to Wadey. She was not told that it had been alleged the tape remained over Millie's mouth for 5 minutes and that her mouth had been taped shut. However, in Wadey's written response she addressed both matters. In the report she said, firstly, that she did not cover Millie's entire mouth to stop her breathing and, secondly, that the action lasted approximately 30 seconds. It is plain, in my view, that the manner in which Lehmann raised the matter was such as to alert Wadey to the need to deal with these matters in her written response. I am satisfied that the first aspect of s 170DC was satisfied in that Wadey was made sufficiently aware of the allegations to enable her to respond to them.
The second aspect of s 170DC is more problematic. I have already said that Lehmann's unchallenged evidence was that she made the decision to terminate after the meeting with Wadey and did so at 8.45pm on the evening of Wednesday 19 July. However, it may be accepted that in speaking to both Spicer and Baker when she had had only Crampton and Franklin's account of what occurred, Lehmann was creating an environment in which external advice she was receiving was, on any reasonable view, directing her to dismissal as the probable outcome of her investigation. However, on Lehmann's own account she did not view the version of events given by Wadey as materially different to the version of events she had been given by Crampton and Franklin. Whether others might have formed that view is presently beside the point unless it was patently unreasonable and evidenced a closed mind in which the opportunity to defend was only an illusory one. The relevant legal consideration is whether the opportunity given to Wadey was one in which she could defend herself. That is, was she given the opportunity of meeting the allegations and persuading Lehmann that her employment ought not be terminated. I am satisfied that Wadey was given that opportunity. The final decision was not made till after the meeting and it was made by Lehmann. It is true that Lehmann did not inform Spicer of Wadey's account. However, Wadey's account was known to Lehmann and she was the decision-maker. I am also satisfied that Lehmann had not made a decision to terminate before she spoke to Wadey and gave Wadey the opportunity of giving her version of events. I am not satisfied that the decision to terminate Wadey's employment involved a contravention of
s 170DC. An issue was raised as to whether a procedure prescribed in the relevant award had been followed. It is a breach of the obligations imposed by the Act that may lead to a remedy under s 170EE. The only relevant legal issue is whether the obligation imposed by s 170DC has been met. In my view it has.
Conclusion - Section 170DE(1)
This leads to a consideration of whether the termination was in contravention of s 170DE(1). The employer bears the burden of establishing that there was a valid reason: see s 170EDA(1). Since the decision of the High Court invalidating s 170DE(2), there has been further consideration by at least two judges of this Court as to what is comprehended by s 170DE(1): see Metalfold v Kim Smoker Pty Ltd, 4 October 1996, not yet reported, Lee J and Kerr v Jaroma Pty Ltd, 7 October 1996, not yet reported, Marshall J.
However, in this matter I am satisfied that there plainly was a valid reason having regard to the conduct of Wadey disclosed by the evidence. On Wadey's own account she restrained a child in an unacceptable way. She did so initially by placing her leg over the child's leg and, when she later applied the tape to the child's mouth, restrained the child by holding the child's hands. It may have been nothing more than an attempt, by dramatic action, to cause the child to reflect on her conduct and stop the tantrum. This is the explanation of her conduct most favourable to Wadey. However, it has not been suggested by either counsel for Wadey or the solicitor for the Association that it was acceptable conduct. Even if done for the reason I just described it had the potential of being misunderstood by the child, other children in the presence of the child who was being restrained, fellow workers at the Centre, those in positions of responsibility in the centre, others concerned in the management of the Centre, and the parents of the child and other children at the Centre. It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational and reasonable views may exist as to whether particular conduct warrants termination. If the view adopted by, or on behalf of, the employer is rational and reasonable then, in my opinion, the employer has established a valid reason for the purposes of s 170DE(1). In putting it this way I am not attempting to depart from the views expressed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 which have been referred to, with approval, on a number of occasions since. Lehmann was entitled to view Wadey's conduct with the gravity she did. Her decision to terminate was for a valid reason.
Had s170DE(2) been available to Wadey other considerations would arise which may have led to a different result. However, the matter must be dealt with according to the relevant operative legislative provisions. I am not satisfied that the termination of Wadey's employment was in contravention of the Act. The order of the Judicial Registrar was that the application be dismissed and it is unnecessary for any further or other order to be made.
I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate: ......................
Dated: 12 November 1996
APPEARANCES
Counsel for the Applicant: Mr R M Goot
Solicitor for the Applicant: Messrs Barker Gosling
Solicitor for the Respondent: Mr A Grinsell-Jones of Deacons Graham & James
Dates of Hearing: 16 July and 2 September 1996
Date of Judgment: 12 November 1996
