Cth: Sacked Childcare Worker did not Breach OH&S

Fair Work Australia has found that a childcare centre that fired a childcare worker for coming to work smelling of alcohol on the basis the employee had breached health and safety regulations, was not a valid reason for dismissal.

The centre did however validly dismiss the worker based upon a breach of the employer’s confidence, given the centre’s duty of care obligations to the children within its care.

Senior Deputy President Peter Richards ruled such a breach risked management’s ability to manage and was a valid reason for dismissal. That the worker admitted to consuming alcohol, had received a warning for a similar incident and the nature of the childcare environment added weight to the decision.

On April 20, the childcare centre summarily dismissed the female worker after directing her to go home the day before because it claimed she smelt of alcohol. The employee said she was in shock and failed to speak up at the time. The centre claimed she admitted to drinking, started crying and said “I am so ashamed”, an allegation she denied. She received a prior warning on February 22 on a similar matter.

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