Day Care Woes: Threatened Fisty Cuffs by Kate Ausden

Kate Ausden Blog

A recent case in the Fair Work Commission has shed some light on some of the risk factors facing small to medium employers. It is difficult for employers, with no internal HR or legal support, to be impartial and maintain appropriate records.

The case involved two childcare workers, who had a heated exchange at a childcare centre, which was witnessed by children. While this evidence was contested by the dismissed employee, it was held that the dismissed employee threatened violence against another employee. As an aside, Commissioner McKinnon commented that there is no relevant distinction “between actual violence and threatened violence.”

While the employee’s unfair dismissal claim failed, largely because of the seriousness of the employee’s misconduct (threatened violence), the FWC raised some serious issues about the employer’s conduct, commenting that, “the investigation and disciplinary process was not a balanced one.”

In particular:

• the failure of the employer to analyse the behaviour and discipline the other employees who participated in the heated exchange (other employees should have received warnings);
• Failure to notify the employee that a past history of violence would be considered in the disciplinary process; and
• Failure to maintain proper training records and/or an inability to prove that the employee reviewed core workplace policies.

Small employers face challenges when disciplining employees.

It is recommended that small to medium aemployers retain legal or HR support to assist in investigations and/or matters relating to disputes between employees.

Employers should be cautious when managers are more closely aligned to a particular employee involved in a dispute, or worse, the manager is a party to the dispute (on the one hand) and also the decision maker (on the other hand).

Courtney Murphy v ECEC Management Pty Limited T/A Mooroolbark Child Care Centre [2019] FWC (9 May 2019)