Two applicants defeated Amity College’s childcare centre
In 2018, the principal of Amity College investigated complaints that had been made about the school’s affiliated childcare centre, finding the two applicants had “engaged in malpractice” in 2016.
The principal subsequently implemented precautionary measures such as CCTV cameras, staff training and behaviour management policies but did not indicate that it would bring disciplinary action against the applicants.
One year later, the applicants received letters explaining that they were the subject of further allegations, this time characterised as “serious child abuse”. It was alleged that, in 2016, the first applicant had left a child in a highchair for an extended period, and that the second applicant had pulled a child’s ears.
The Association of Independent Schools subsequently investigated these allegations, confirming each of them.
Following this, the principal advised the two applicants that the centre was considering terminating their employment. The applicants attended separate meetings where they were provided an opportunity to respond to the concerns.
In April 2020, the principal confirmed the applicants’ employment, stating that their conduct caused “serious and imminent risk to the health and safety of the children.”
The applicants’ lawyer submitted evidence to show that the allegations could not be proven to the requisite standard, and that therefore the dismissals were unfair.
The childcare centre’s lawyer submitted other instances of the applicants’ misconduct, which included grabbing a child’s wrist to force him to sit down and sticky-taping a child’s mouth shut after they used offensive language. However, given these offences were not mentioned in the letters to the applicants, the Commission found they could not be relied upon by the centre as valid reasons for the dismissals.
As for the two 2016 offences, the Commission explained that, “It was plainly untenable and indefensible for the employer to dismiss the applicants in 2020, for reason of their alleged conduct in 2016 which, in 2018, had been identified, addressed, and not repeated.”
The Commission was not satisfied that the stated reasons for the applicants’ dismissals were sound or defensible, leading to a finding that the dismissals were unfair.
The Commission ordered compensation of $33,390 to the first applicant and $27,762 to the second applicant.
Employers cannot rely on reasons not communicated to employees in an unfair dismissal suit
