After receiving a complaint from a parent, Children First childcare centre instigated an investigation into one of their employees, Donna Eland. She had allegedly smacked a two-year-old child on the hand when telling them off.
An internal investigation launched found that Eland was guilty of inappropriate conduct. Her co-workers were asked whether they had ever seen a member of staff smack, or roughly-handle a child. Two of the three staff members asked answered no to seeing a member of staff ever smacking a child, while the third mentioned she had been aware of such an incident, identifying Eland. To the second question, two of the three staff identified that they had seen Eland “roughly handle” a child.
In one of the written statements by Eland’s co-workers, she was accused of rough behaviour towards children on a number of separate occasions. The statement read:
“Donna has pulled [a child’s] hair when he has pulled another child’s hair.. 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.”
On November 12, after receiving accounts, Eland was called in to a disciplinary meeting, and was terminated the following day. However Eland took the case to an employment tribunal, arguing that she was unfairly dismissed because she was unaware that the allegations made against her by her co-workers were the grounds of her dismissal. Therefore, she argued, she was unable to put her case forward effectively at her disciplinary meeting. The tribunal agreed, and as a result Children First lost the unfair dismissal case.
However, some argue that regardless of what Eland was told, she should not have remained in employment because there were numerous complaints made against her by a number of different people. Employment lawyer Peter Vitale made a statement warning businesses that they have to be extremely careful that the process of investigating misconduct is appropriate, and sufficiently establishes misconduct has actually occurred. A spokesperson for Children First replied that the issue was making a decision based on the evidence in front of them. Meanwhile, the Fair work Commission made its decision based on the evidence they were allowed to present. Their advice for others small businesses, was to make sure they have adequate witnesses – and witnesses who are willing to testify before the Fair Work Commission.
If you have been subjected to unfair dismissal, contact us now for advice on a claim.