FWC rejects unsound misconduct investigation

FWC rejects unsound misconduct investigation

The Fair Work Commission has quashed the dismissal of a child-care worker, determining that the employer failed to adequately investigate allegations of serious misconduct that they relied upon in their decision to terminate her employment. The case again highlights the need for employers to be thorough, unbiased and objective in their decision-making.

The employee, ‘JW’ was engaged as a qualified Early Childhood Teacher at a Preschool centre in the Sydney suburb of Glebe, operated by Amigoss Preschool and Long Day Care Co-Operative Ltd (Amigoss). JW worked there as a casual in 2008 and 2009 and was then engaged on a fixed-term, part-time contract in 2010. In February 2015, she commenced full-time employment that continued until her summary dismissal on 12 November 2020, a period of about 5 years and 8 months.

In the proceedings before Commissioner Ian Cambridge, it was determined that the business employed fewer than 15 employees at the time of the dismissal and was, therefore, subject to the Small Business Fair Dismissal Code (the Code). Under the provisions of the Code, “It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”.

There were a series of meetings held between JW and her employer regarding her performance during 2020, including a ‘without prejudice meeting’ held on the morning of 26 October 2020. She was not given any indication about the reasoning for the meeting, the subject matter(s) to be discussed, or provided with any opportunity to have a support person present. During the meeting, she was informed that complaints had been made against her by parents at the centre, although no details were provided.

Amigoss management made it clear at the meeting that they believed her position was untenable and suggested she should complete a deed of release and for her employment to cease. She then engaged legal representation, and correspondence ensued between the parties.

Significantly, on 9 November 2020, she returned to work and was immediately called to a meeting with management. At the meeting, she was placed on paid suspension from duty and handed a letter entitled, Confirmation of Suspension. The letter referred to “a number of allegations of serious misconduct that have recently been brought to our attention”.

On the same day, she received an email from Amigoss setting out five allegations against her, the first two being that in April/May and between June and September 2017 (three years prior), she had physically abused a child by tying their hands together with tape or rope. Amigoss then referred the matter to the police, who arrested her, but the charges were ultimately dropped in April 2022.

The third allegation was that she had deleted files from her work computer, which were the property of Amigoss. The fourth allegation was that she had failed to provide effective guidance to particular parents. The fifth allegation was that she had displayed inappropriate and disrespectful behaviour, scolding a child during a workshop activity.

Amigoss allowed JW to provide responses but subsequently summarily dismissed her.

Commissioner Cambridge determined that Amigoss’ investigation of the allegations was seriously flawed. In relation to allegations 1 and 2, Amigoss did not interview either of the complainants and effectively accepted their statements as factual.


… the position that was recognised by the employer in respect of allegations 3, 4 and 5, has provided confirmation that, firstly, in respect to allegation 3, Mr G was capable of making a false or recklessly careless decision, and secondly, he made decisions about allegations 4 and 5 without any inquiry, investigation, or otherwise testing the subject matter of his determinations … The belief that Mr G had was not a belief that the applicant’s conduct was sufficiently serious to justify immediate dismissal, but instead, he held no more than a suspicion that something had happened”.

Unsurprisingly, Commissioner Cambridge found that there was not a valid reason for the dismissal, nor did Amigoss satisfy the requirements of the Code.

He awarded JW compensation totalling $33,488.00.

JW v Amigoss Preschool and Long Day Care Co-Operative Ltd (U2020/15433) 3 November 2022

For queries about misconduct allegations, conducting investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or 1300 925 529 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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