Mrs Narghis Sultana v Thomastown Child Care Centre Inc. [2016] FWC 422 (C2015/6192). WILSON, C. 22 JANUARY 2016

This matter relates to a general protections dismissal dispute by consent arbitration between a community-based child care centre and Ms Sultana, a Centre Carer.

The FWC did comment that such application would normally go through the unfair dismissal process, it was not critical of the path taken by the parties, that is there was no position put that Ms Sultana was dismissed because of her (lack of) performance, but rather because she had made complaints about her manager and a committee member in the course of allegations being put to her about her conduct.

In summary, Ms Sultana’s complaints were she exercised a workplace right when she:

  • Complained about the role of her manager in supervising assignments that would lead to a diploma of early childhood education and care qualification;
  • Complained about statements made to her by the Chair of the Committee of Management; and
  • Sought a review by the Committee of Management of a formal warning issued to her regarding her conduct.

During her employment, Ms Sultana undertook training towards a Diploma of Early Childhood Education and Care. As part of her studies, Ms Sultana was required to undertake certain assignments and submit those to an external training provider, Customised Training Pty Ltd. As would be expected, those assignments related to a demonstration of competence in the workplace about the matters that had been the subject of training.

In late June 2015, a representative of Customised Training, Bethany, expressed concerns that some aspects of the assignment had been plagiarised. Bethany identified that to Ms Sultana as well as identifying it to TCCC.

In the course of the meeting on 1 July 2015 (held to discuss this matter), TCCC became concerned about another aspect of the assignment that had been submitted by Ms Sultana to her training provider. Their concern was that photographs used in the assignment of children at the Centre had been apparently used without the permission of the children’s parents. They viewed this as being a potential breach of the Child Care Centre’s policies and potentially a breach of legislation applying to the TCCC. They expressed their concern to Ms Sultana and told her that they would need to investigate what had occurred.

A further meeting was held with Ms Sultana on 3 July 2015 which was attended by Ms Sultana and TCCC. The meeting discussed TCCC’s concerns about the use in Ms Sultana’s assignment material of imagery of children without permission and sought her response.

On 10 July 2015, Ms Sultana was issued with a formal performance warning by TCCC, directly addressing the matters referred to above. Ms Sultana applied to the centre’s Committee of Management on 29 July 2015 for it to be reviewed.

Following receipt of the application for review, TCCC conducted a performance review of Ms Sultana’s performance at short notice. Ms Sultana was not given any specific notification that the performance review would be conducted on that day. At the conclusion of the performance review, Ms Sultana was advised performance was not at the level required by TCCC and that her services were no longer required, with the effect being that her employment would be terminated on that day.

Note: Under an adverse action claim, the onus is on the employer to provide they did not breach the FWA, and in this case the actions taken by TCCC are presumed to have been taken for the alleged reason unless proven otherwise.

The Commissioner cited a FB decision Keep v Performance Automobiles Pty Ltd (Keep):

“It is important to note that s.361 does not obviate the need for an applicant to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicant to merely make assertions regarding these elements, they must be determined objectively.

“The task of the FWC in a consent arbitration proceeding such as this is to determine three factual questions:

(i) Was the employee exercising a workplace right, within the meaning of s.341?

(ii) Did the employer take ‘adverse action’ against the employee, within the meaning of s.342?

(iii) Did the employer take the adverse action against the employee because of a prohibited reason, or reasons which included that reason?

Whether Ms Sultana was fairly dismissed is not the domain of this decision, and no findings are made in that regard.

I am unable, however, for the reasons set out, to find that Ms Sultana was dismissed because of a prohibited reason, or reasons which included that reason.

Commentary

Despite the reverse onus, the applicant is still required to provide that there is a genuine case to answer.

Further, I am of the view should the matter have taken the “unfair” dismissal route, there may well have been a different outcome.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
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  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.