A dismissal was found to be justified by the FWC, but the inadequate investigation risked a different decision.

In November 2018 a child care worker, Louisa*, was dismissed from Mooroolbark Child Care Centre after she allegedly threatened a co-worker, Margaret, in front of a parent. Alex, another employee, who was holding a child nearby stepped between the two workers, concerned a fight would break out.

In the FWC decision Commissioner McKinnon upheld the dismissal, but the decision makes it clear that the inadequacy of the investigation risked a different outcome. The two most pertinent shortcomings revolved around how a staff member’s personal out-of-work history should be handled, and how an investigation can’t have a myopic focus on the perpetrator.

The incident

Louisa was cleaning a room for about an hour when Margaret came in to speak with her about covering for another employee who needed a break. This fact is corroborated by all witnesses but from here on, accounts differ.

One witness says Louisa retorted “Well what, do you want to go me?” Other accounts then heard her say, “F**k it, I’m over this s**t” before storming off. Another witness was unable to decipher what was said but heard raised voices. All witnesses said she had her hands raised in an aggressive way, indicating she wanted to fight.

Louisa denies that she retaliated in an aggressive manner and instead said she wanted to discuss the matter outside and away from parents and children.

McKinnon ruled that the evidence was enough to show Louisa had committed serious misconduct and that therefore her dismissal was justified. McKinnon noted that even if Louisa hadn’t hit Margaret, the threat was enough reason for her dismissal.

“I do not accept that there is any relevant distinction to be drawn…between actual violence and threatened violence. A threat of violence is the antithesis of respect,” says McKinnon.

“In my view, it was serious misconduct.”

The relevance of personal history

McKinnon says the evidence makes it clear that Louisa and Margaret had a tense relationship stemming from two issues; domestic violence and a ‘nappy changing incident’. The court document didn’t divulge what that incident was. 

Margaret lived near to the parents of Louisa’s ex-partner, with whom Louisa had a history of domestic violence. It is implied that gossip was spread about Louisa due to Margaret’s knowledge of this history.

In its investigation, the childcare centre took into account Louisa’s history of domestic violence and related mental health issues, which McKinnon said was warranted.

“The Centre explained this as part of its duty of care to staff. As I understand the argument, it did not wish to find itself in a position where there was an incident at the Centre and it had not acted to protect staff from a person that it was aware had a history of violence.”

However, McKinnon says there was no evidence that Louisa was notified her history would be taken into account. Because of this, she was not able to object to its use nor was she able to put the history of domestic violence into context. This was procedurally unfair.

“While the matters may have been relevant in helping to explain the tension between Louisa and Margaret, it could only have been considered fairly with the input of Louisa herself,” says McKinnon. “The result was a denial of procedural fairness to Louisa. This weighs in favour of a finding of unfair dismissal.”

An unbalanced investigation

The lesson to take from McKinnon’s decision is that while Louisa’s actions were not justified her employers failed to perform a completely balanced investigation.

It wasn’t a total failure, as McKinnon says, “In some respects, the process was orthodox. An allegation was made, [Louisa] was stood down on full pay, and an investigation occurred before allegations were formally put and determined.”

However there were several oversights in the process.

Firstly, as previously mentioned, her personal history was used as evidence in the investigation but Louisa was not informed of this fact.

Secondly, the employer failed to investigate the conduct of Margaret, which contributorily led to the fight, and Alex’s ‘well-intentioned but unsafe’ interference, which put a child in danger. McKinnon says that this meant the case didn’t “appear to have been dealt with on an equal footing, as the conduct in each case was not considered serious enough to warrant a disciplinary response.”

“[Margaret] was not warned for her part in the incident that resulted in [Louisa’s] dismissal. Willingly or not, she was a participant in the conflict both on that day and also, in my view, in the weeks and months leading up to it.”

McKinnon weighed the investigation’s failures against the inexperience and small size of the organisation and its lack of HR specialists.

“[T]he investigation and disciplinary process was not a balanced one. This highlights both the importance of objectivity and the difficulty for inexperienced employers in ensuring procedural fairness for employees absent specialist advice and support. It weighs in favour of a finding of unfair dismissal (in relation to fairness between [Louisa] and other employees of the Centre) and against a finding of unfair dismissal (in relation to the Centre’s size and related lack of dedicated human resources management or expertise in the business).”

HR lessons

McKinnon ultimately believed the dismissal was fair, but felt compelled to issue a warning.

“The procedural failings I have identified in the period after 25 October 2018 put the Centre on notice of other measures it may now need to take to ensure that ultimately, balance is achieved and the safety of children in care is never compromised.”

Fortunately for the Mooroolbark Child Care Centre, they were only reprimanded for their actions and it could have been much worse. HRM has written about workplace investigations in the past, and the key things to ensure you investigate fairly are as follows:

• The respondent knows all allegations made against him or her
• The respondent is given a reasonable opportunity to respond to the allegations
• Confidentiality is maintained
• The investigator is impartial
• The investigator considers all relevant evidence

* All names have been changed in this story.