Worker wins $11,000 compo payout after “hopelessly flawed investigation” lands business in hot water
Tuesday, May 28, 2019/
An NSW-based early learning centre that dismissed a worker after being told she was leaving for a competitor has been ordered to pay more than $11,000 in compensation following a Fair Work Commission (FWC) appeal.
The worker delivered a resignation letter to the Dubbo Early Learning Centre in 2016, hours after she accepted an offer from a nearby childcare facility, intending to serve out her notice period.
Shortly afterwards, the owners of the early learning centre contacted the worker asking her to reconsider. She declined. The owners then called again later that same afternoon, telling her she was being stood down over allegations of serious misconduct.
The employer claimed the worker put their service approval at risk by being overly physical with the child she was caring for a day earlier and was subsequently summarily dismissed later that week.
The specifics involve allegations the worker responded excessively to an emotional child being cared for by the centre, but the worker denied those claims and filed for unfair dismissal, claiming she was denied procedural fairness.
The employer relied primarily on witness testimony, arguing the specifics of the incident merited serious misconduct and were indeed grounds for summary dismissal.
However, finding several inconsistencies in the testimonies provided by eyewitnesses, FWC deputy president Peter Sams found the employer’s investigation was “seriously flawed”.
Sams found the employer “rushed to judgement” over the incident to avoid putting his accredited provider license in jeopardy, in the process denying the worker fairness.
“On my reading of the regulatory mandate … [the owner] was only required to notify of the incident within 24 hours,” Sams said.
“He went further by advising of the applicant’s suspension and of an investigation having been commenced. Far worse, he rushed to judgement, without affording the applicant natural justice.”
“There was no legal, ethical or logical reason to do so. He could have, for example, kept the applicant on suspension, accepted her reasonable request for 24 hours’ notice of a directed meeting and provide her with the details of the complaint by email,” Sams said.
Sams concluded the worker did not engage in the conduct alleged by her former employer, finding in favour of the worker.
“The decision was unsound, indefensible and ill-founded, and based entirely on a hopelessly flawed investigation,” he said.
Workplace Law managing director Athena Koelmeyer says the case is a classic example of a “fruit from the poison tree” scenario where an employer has bungled an investigation.
“If you don’t get your investigation right you might find yourself sent right back to the beginning, like a very expensive game of snakes and ladders,” she tells SmartCompany.
“It seems pretty clear from the judgement that he [Sams] has reached the conclusion that all of this was a retribution attempt by the employer.
“We are all, as employers, sometimes annoyed when someone decides they don’t want to be your employee anymore … however, turning around and dismissing them based on a shonky investigation is probably not the best idea,” Koelmeyer says.
Koelmeyer adds businesses need to be careful with witness testimony, particularly if those giving evidence are going to be cross-examined because inconsistencies can quickly open up.
SmartCompany contacted the Dubbo Early Learning Centre for comment but did not receive a response prior to publication.
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