$33.5K compensation for sacked ECT wrongly accused of child abuse

The Fair Work Commission has awarded an Early Childhood Teacher (ECT) substantial compensation after finding she was unfairly dismissed by her small business employer in November 2020, following a lacklustre investigation into allegations she had twice bound the hands of a child some three years earlier.

The ECT, who had been employed on a full-time basis since February 2015, had raised seven different grievances against the employer’s CEO six months prior to the alleged concerns about the ECT’s performance coming to light. Although the ECT’s original grievances were investigated and were substantiated in some respects, no further action was taken against the CEO.

Instead, the ECT was summoned into a meeting on 26 October 2020, without notice, where the CEO vaguely outlined there had been parent complaints about her performance and indicated the “without prejudice meeting” presented opportunity for the ECT to “negotiate terms to provide for her resignation”. The ECT was not provided with the detail of the purported parental complaints against her or a response as to why the serious allegations of child abuse (hand binding) were only being raised three years after the alleged event. When an agreement could not be achieved for the ECT’s employment to end amicably, the ECT was summarily dismissed on 12 November, following a bungled disciplinary process guided – and conducted, in-part – by external advisors, Employsure.

The alleged child abuse was referred to NSW Police, causing the ECT to be arrested and charged (charges were dismissed in April 2022), and her Blue Card to be revoked.

In finding the ECT was unfairly dismissed, Commissioner Cambridge assessed the termination was not consistent with the Small Business Fair Dismissal Code because “there were no reasonable grounds for any belief” by the employer that the ECT had bound the hands of a child, and the remaining concerns about her performance were insufficient to warrant summary dismissal.

Commissioner Cambridge was scathing of the “unconscionable and unscrupulous conduct” of the CEO and the pre-school Director “associated with erroneous claims of serious child abuse for which there was no attempted defence”, adding they “are matters that should trouble the conscience of those individuals”. The Commissioner further criticised the process adopted by the employer prior to dismissal, labelling it a “litany of mistakes”.

Acknowledging the employer’s “erroneous findings of serious misconduct…destroyed the [ECT’s] employment” and “caused significant personal, financial, reputational, and career damage”, Commissioner Cambridge awarded the ECT $33,488 (gross) compensation.

Wood v Amigoss Preschool and Long Day Care Co-Operative Ltd [2022] FWC 2925 (3 November 2022)