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Introduction

In a case where the Commissioner has elected not to provide compensation to childcare manager, is a timely warning to employers to ensure that persons put into management positions are well supported to undertake the role. But the most interesting factor of this case is that whilst finding that the applicant was unfairly dismissed, the Commissioner did not apportion one cent of compensation. Given that the applicant was Union-represented, I wonder if there is an appeal in the offing?

 Background

The applicant in this matter had 20 years in the childcare industry, including nearly two years as the “nominated supervisor” of a childcare centre. A “nominated supervisor” has legal responsibilities under various legislation relating to the care of children, including the reporting of certain incidents.

The childcare centre in question, was purchased as a going concern by the new owner in 2016, with the new owner promoting the applicant to the “nominated supervisor” position in November 2017. The applicant has had no previous management experience and received no training or support from the new owner in her new role.

The applicant had a previous warning as a result of a child eating food that was not appropriate. However, the applicant was dismissed for a childcare worker under her control grabbing a child by the arm and failing to report the incident – notwithstanding that she did report it to her area manager verbally within the 24-hour timeframe requirements for such incidents.

Findings

The Commissioner observed that a warning must:

•         Identify the relevant aspect of the employee’s performance which is of concern to the employer; and

•         Make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.

The Commissioner finding that in this matter, the Applicant was not:

•         Warned that her inaction in reporting complaints and or incidences in writing within a 24-hour timeframe will result in her immediate termination of employment.

•         Genuinely given the opportunity to explain why she should not be terminated summarily.

Concluding therefore, that the Applicant was not warned of her unsatisfactory performance relating to the reason for her dismissal before her dismissal.; and:

“…should the Applicant not gain the satisfactory competency in the role, her employment would have been terminated. However, the Respondent knew of the Applicant’s shortcomings and despite the resources on hand it did not take steps to support her development or consider an alternative role given her experience in the industry”.

Conclusion

This the interesting bit. The Commissioner concluded:

“I find that in all the circumstances, I do not consider that payment of compensation is appropriate because the Applicant was out of her depth in the role of Centre Manager. While her experience in the sector is substantial, her experience in managing a centre, its liabilities, and responsibilities was not at a standard required by the Respondent. It is evident the Applicant did not have the required competency to perform the role dependably without support by the Respondent.

“Given its size and resources, I find the Respondent managed the appointment and employment of the Applicant inadequately. Given the level of experience in the childcare sector and the Applicant’s admission that her priority is her private care obligations, I am of the opinion that there is limited scope that the Applicant would have maintained enduring employment in the role as Centre Manager.

“I therefore decline to order any remedy, notwithstanding that I found the Applicant was a person protected from unfair dismissal and had been unfairly dismissed”.