Illawarra child care provider Big Fat Smile has been slapped with a $24,000 fine, plus costs, after a sleeping three-year-old boy was left undiscovered at a Wollongong centre for almost an hour after closing time.
The fine is the second serious sum to be paid out by the provider for supervision failures in as many years.
The provider’s CEO, Jenni Hutchins, and general manager governance and risk, Angela Taylor, were in Wollongong Local Court to hear Magistrate Michael Stoddart hand down sentence on the matter, Thursday afternoon.
Representing Big Fat Smile, lawyer Mario Quintiliani pointed to the provider’s positive 38-year track record and well above-average performance ratings.
He said the not-for-profit took seriously the June, 2016, slip-up, which occurred at Wollongong City Community Pre-School.
But management had since struggled to identify any flaws in policy and procedure. The blame lay with staff members, Mr Quintiliani said.
“We can’t say … that something didn’t go wrong. However what we can say … is that on that particular incident there was a failure in those personnel we entrusted, to carry [policy and procedure] out,” he said.
“As a corporation … we can put these measures in, we can do the training, we can spend the money, we can have the policing, but on the day it must be those individuals who have the passion to push the button when needed.
“Subsequent to the incident … an investigation was carried out, disciplinary action was taken, one person – I understand it might be two people at this point – have left our organisation.
“This is an unfortunate incident and an incident that we in some ways struggle to be able to provide an acceptable, cogent explanation for why several people failed on that particular day.
“But what we say is that the child was never in any danger. He was comfortable, in a familiar environment.”
On the day of the breach, the boy’s parents had arranged for a friend to collect him from the Keira St centre, however the friend forgot this. He was discovered by a cleaner as he was waking up, 54 minutes after closing.
The court heard the boy’s parents later increased the number of hours he spent in care at the centre.
Representing the NSW Department of Education, barrister Neha Evans told the court this was “irrelevant”.
“Your Honour would be well aware of the wait lists at various day care centres,” she said. “It could simply be a case of they [could not] get this child into another facility.”
That the child was discovered within the hour was “sheer good fortune”, Ms Evans said.
“Had the cleaner not found the child, the child could have woken at some point later in the evening to find himself in a dark, locked facility with nobody around. Now that's a great concern to the community.”
“I accept that they [Big Fat Smile] have been caring for multiple children over several years, but unfortunately we’re dealing with vulnerable members of the community, being children. It's simply not good enough to say, 'on most occasions everything is fine’.
“In this case the service provider clearly fell foul of [the legislation]. There [was] no head count done, no checks and balances in terms of … how many children were there that day compared to how many children had been signed out and no security clearance form certifying that the facility was about to close and that all children were accounted for. These are things that could have easily been done.
“It's all very well and good to say, ‘we've had spot checks and no notices have been issued to us, etc’, because it appears that on the face of it their policies and procedures may very well be adequate.
“But the harsh reality is, they are not properly then implemented by staff members who are employed by this service provider who has a positive duty to ensure [supervision].
“At the end of the day it's the service provider who employs these people.
“They've now had two very ... grave breaches in a two-year period.”
Big Fat Smile operates 41 centres in NSW and cares for 5400 children. It faced a maximum $50,000 penalty for the supervision breach.
The Wollongong centre’s then-supervisor, Michelle Haley, was personally charged over the matter.
The court heard she had special dispensation to leave work 10 minutes early, and that she had assumed other staff would carry out end-of-day duties, including signing out children.
She was fined $5000 plus $250 in costs. She has lodged an appeal, to be heard in Wollongong District Court on April 20.
Magistrate Stoddart considered a six-page judgement relating to an earlier case against Big Fat Smile before determining sentence on Thursday.
In August 2016 the provider was fined $13,000, plus $16,000 in costs, after a five-year-old boy went missing from a Bellambi-based respite program for children with autism in July, 2014. The centre's then-director, Lan Zhang, was personally fined another $6000.
The boy slipped away through an improperly locked gate between 1.30pm and 2.10pm while three of four staff were tied up with administrative tasks – one of them a Facebook-style app for updating parents. He was taken in by concerned stranger after he walked to the beach. His absence went unnoticed until his father arrived to collect him at 3.10pm.
Half of the fine imposed on Thursday will go to the department of education. Big Fat Smile must also pay $3500 in costs.
Outside court Ms Hutchins read a pre-prepared statement, published in full below.
Statement, Big Fat Smile
This is a formal response to the situation which occurred at Big Fat Smile Wollongong City Community Preschool nearly two years ago in June 2016.
This was a rare situation. We deliver 400,000 positive care experiences across our 41 centres each year.
We take our responsibility for ensuring the safety, welfare and wellbeing of our children very seriously. We undertook immediate corrective action and voluntarily reported this to the Government.
Big Fat Smile continues to focus our strength on quality education and care, and proactive compliance with regulation policies and procedures to ensure a continuous improvement environment.
94% of Big Fat Smile’s services are rated as exceeding by the Government compared to the state average of 27% and the Australian average of 31%.
Big Fat Smile is one of the most respected and reputable providers of early education services in Australia and we are proud to provide over 400,000 positive care experiences across our 41 centres each year