Full Bench says dismissal unfair where Director left toddler unsupervised

The Full Bench of the Fair Work Commission overturned a decision of Commissioner Bissett where she said the termination of a child care centre Director was not unreasonable or unfair where they left a toddler unsupervised. The Full Bench found that Commissioner Bissett incorrectly interpreted the Education and Care Services National Law Act 2010 (VIC) (“National Law”) by defining ‘adequate supervision’ too narrowly. The Full Bench found that the termination was unfair and the Director was awarded $16,000.

The facts

Ms Read worked for Gordon Square Child Care Centre (“the Centre”) for 21 years, and the last 12 years she was Director of the Centre. Ms Read left a child alone in the infants’ room while she went into the reception area to answer the phone. Ms Read says she did not have the child in her sight for a matter of seconds. The reception area was 5 metres away from the infants’ room. The Centre dismissed Ms Read for leaving a child unsupervised and unattended.

The law

Section 385 of the Fair Work Act 2009 says that a person has been unfairly dismissed if the Fair Work Commission is satisfied that the person has been dismissed, the dismissal was harsh, unjust or reasonable, the dismissal was inconsistent with the Small Business Fair Dismissal Code and the dismissal was not a case of genuine redundancy.

What the Full Bench said

When the matter was heard first before Commissioner Bissett, she said that Ms Read had failed to adequately supervise a child in her care, and that by answering the phone she was no longer monitoring the child actively and diligently within the meaning of the National Law. The Full Bench (Commissioners Deegan and Gregory with Senior Deputy President Acton) found that it was not open to Commissioner Bissett to find that conclusion on the evidence available to her. They did not agree that by answering the phone Ms Read was no longer giving her attention to the supervision of the child, particularly where the child was 5 metres away. They noted that the Centre’s policy said that the carers “should” avoid speaking on the phone, not that they “must not” speak on the phone.

What it means for the child care industry

Commissioner Bissett was critical of the Centre’s rostering practices in that Ms Read was alone in the Centre with responsibility for supervision and administrative procedures at the same time. Ms Read felt compelled to answer the phone because she thought it was another educator calling to say that they were unwell. Although the Full Bench did not say that when Ms Read answered the phone the child was not adequately supervised, it is something for other child care centres to consider when they require educators to carry out administrative tasks and supervise children, particularly at the beginning or end of the day.

Read v Gordon Square Child Care Centre t/as Gordon Square Child Care Centre [2013] FWCFB 762

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