The importance of context

The recent decision of the Fair Work Commission in Kaur v Moorditch Gurlongga Assoc is a useful reminder of the need to consider context when investigating and determining misconduct allegations.  

Mrs Kaur was employed as an early childhood educator. The centre where she worked provided long day-care, after-school care and vacation care.

One afternoon, during the after-school care program, an 11 year old child became agitated. He stabbed another child with a pencil. Mrs Kaur stepped in to stop this.

The child then ran outside. He threw chairs and toys at the children outside. Mrs Kaur followed him outside and sent the other children inside.

She tried to calm him down but was unsuccessful. The child ran towards the fence and tried to climb over it. Mrs Kaur chased him and grabbed his arm. The child yelled that his hand was broken, so Mrs Kaur let him go.

The child then climbed over the fence and ran off. After letting others know what had happened, Mrs Kaur gave chase on foot.

After an investigation, Mrs Kaur’s employment was terminated, in large part because of the events of that afternoon. In particular, the employer decided that Mrs Kaur breached its child safety policies by –

• "Manhandling" the child
• Chasing the child
• Leaving children unsupervised when she chased the child.

The Commission held that there was no valid reason for the dismissal. It stated –

“Mrs Kaur was responding to an emergency situation … Criticisms of her actions must be considered in this context. The complaint against her by the [employer] could not, in these circumstances be said to be sound, defensible or well founded.”

The decision is a reminder to investigators and decision makers that focusing too narrowly on discrete aspects of an employee’s conduct can lead to unsound conclusions. In assessing an employee’s conduct context is often vital.