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.
In response to that complaint, the childcare centre suspended Ms Eland and issued a questionnaire to staff asking whether they had ever seen another staff member “roughly handle” a child. A colleague – Ms Kayla-Marie Kirk – claimed that she had seen Ms Eland treat children roughly. Ms Eland was subsequently dismissed on 13 November.
In her statement to the Fair Work Commission Ms Kirk noted that: “Donna has pulled a child’s hair when he has pulled another child’s hair” and “She has also been rough towards a few children thatI feel irritate her” and “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”.
Vice President Catanzariti observed that it was not until the day of the hearing that Ms Eland 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. By extension, Catanzariti found that Ms Eland had not been made aware of the basis upon which she was dismissed or given an opportunity to defend herself as effectively as she otherwise might have.
Importantly, the Vice President emphasised that “the procedurally deficient investigation process” was not the only basis upon which Ms. Eland’s dismissal was unfair. He noted that he was also not satisfied on the basis of the evidence before him that Ms Eland had engaged in the conduct in which she was alleged to have engaged, and therefore was unable find that there was a valid reason for her dismissal.
Catanzariti came to this conclusion after rejecting the evidence of Ms Kirk whom he described as “not a reliable witness” because of inconsistencies in her statement, her inability to recall important details and her general temperament in the stand. He also expressed his obvious reservations about “accepting uncorroborated evidence in the form of hearsay from a two year old child”.
The childcare centre was ordered to pay Ms Eland $20,404 in compensation.