Employee accused of smacking two-year-old child wins unfair dismissal case

A childcare centre that dismissed an employee following an accusation the staff member smacked a two-year-old child has lost an unfair dismissal case.

On November 7, 2013, the Children First Blacktown Road Children’s Centre in Blacktown, NSW, received a complaint from a parent alleging one of its employees – Donna Eland – had smacked their two-year-old child on the hand.

Eland was eventually dismissed from her position, following an internal investigation, but a Fair Work hearing into the case found Eland had been unfairly dismissed as she was not told statements from her co-workers during the investigation formed the basis of the dismissal, instead of the parent’s initial complaint.

The Fair Work Commission heard that Diane Rawlings, manager of the Children First Blacktown Road Children’s Centre, initially suspended Eland on full pay after receiving the parent’s complaint and commenced an internal investigation.

On November 8, Rawlings gave the other three staff who had worked with Eland a questionnaire asking whether they had ever seen a staff member smack a child, and whether they had ever seen a staff member “roughly handle” a child.

Two of the three staff members answered no to the first question, while a third mentioned she had seen an employee smack a child, identifying Eland.

For the second question, two of the three staff identified that they had seen Eland “roughly handle” a child.

Rawlings asked both of the staff members who claimed to have seen Eland roughly handle a child to provide a written account of what they had seen.

In one of the handwritten statements, one of Eland’s co-workers accused her of a string of rough behaviour against children at the centre.

“Donna has pulled [a child’s] hair when he has pulled another child’s hair,” the co-worker said. “She has also been rough towards a few children that I feel irritate her.”

“If [some children] have done something wrong she would strongly pull them and tell them to sit on the floor. Donna has also lightly smacked their hand if they have done something wrong,” said the staff member.

On November 12, after receiving accounts, Eland was called in to a disciplinary meeting, and was terminated the following day.

The Fair Work Commission found that while Eland “was provided with the written statements of the other employees, and thus aware of the other allegations that had been made against her, she was not told that these allegations were to form the basis of her dismissal”.

“Indeed, it was not until the day of the hearing that the applicant understood that it was these allegations, and not the allegations made by the parent in the initial complaint, that formed the basis of her dismissal,” said the commission. “This prevented the applicant from putting her case as effectively as she otherwise might have.”

A spokesperson for Children First told SmartCompany a lesson from the case is that small businesses need to be careful while collecting evidence.

“To my mind, the issue is we made a decision based on the evidence in front of us. Meanwhile, the Fair work Commission made its decision based on the evidence we were allowed to present,” the spokesperson says.

“My advice to small businesses is to make sure they have adequate witnesses – and witnesses who are willing to testify before the Fair Work Commission.”

Employment lawyer Peter Vitale told SmartCompany businesses need to have appropriate processes for investigating accusations of misconduct.

“You have to be sure your process for investigating misconduct is appropriate and sufficiently establishes misconduct has actually occurred,” says Vitale.

“Secondly, it’s important employers have processes to put allegations of serious misconduct directly to employees, getting a response, then making a decision in regards to what disciplinary action is appropriate,” he says.

“That needs to have regard to the length of service, the seriousness of misconduct, what action the employer may have taken in action to similar misconduct from other employees, and making sure there’s a fair go between employer and employee.”