In a recent unfair dismissal case1 heard by the Fair Work Commission (‘FWC’) an aged care worker Ms Tavassoli (‘the Applicant’), who was successful in her claim that she was constructively dismissed, was reinstated due to significant deficiencies in her employer, Bupa Aged Care Mosman’s (‘Bupa’) investigative process.
At the aged care facility where the Applicant worked (‘the Facility’) between 13-14 of November 2016 a colleague filmed the Applicant using a mobile phone without her consent on two occasions. Bupa alleged that the video recording (‘the Video Recording’) depicted inappropriate behaviour by the Applicant including: laughing about the death of two residents, ignoring resident’s buzzers for staff assistance, and mocking residents by singing a line from the song ‘Anything you can do I can do better’ (‘the Allegations’).
On 15 November 2016, the acting General Manager of the Facility, Mr Brice, was shown the Video Recording. The next day whilst the Applicant was at a training course he advised her that they “need[ed] to have a discussion”, directing the Applicant to wait outside the Facility for two hours to allow time for the Human Resources team to prepare documentation for a meeting.
At this time the Applicant had not been provided with the Allegations, and whilst waiting outside, concluded that the impending meeting was in relation to being offered beer by a resident. The Applicant feared being accused of theft or that her employment would be terminated for stealing. As a result, when a colleague walked past her she sought assistance in drafting a resignation letter. The Applicant then re-entered the Facility and provided Mr Brice with her letter of resignation which included a provision for four weeks’ notice. Mr Brice refused the resignation letter and insisted on a meeting (‘the Meeting’) to discuss the Allegations.
In the Meeting Mr Brice read aloud letters from Bupa outlining the Allegations and advised the Applicant of Bupa’s intention to launch an investigation into the matter. The Applicant was not provided with any copies of these letters, nor was she shown the Video Recording. The Applicant also claimed that she did not fully understand the process and correspondence in the Meeting, which Commissioner Riordan attributed to her “poor…command of the English language.” Mr Brice advised that unless the Applicant changed the effective date of her resignation from four weeks notice to “immediate”, she would be required to participate in the investigation process. As a result, the Applicant amended her resignation letter to the effect that her resignation had immediate effect. The following day, Mr Brice emailed the Applicant confirming the resignation.
The next morning, the Applicant attended the Facility in an attempt to rescind her resignation, which Mr Brice refused. The FWC held that Mr Brice’s refusal of the Applicant’s rescission was due to the fact that Mr Brice had already formed the view that Ms Tavassoli “deserved to be dismissed” after he viewed the Video Recording.
Commissioner Riordan identified two key legal questions that needed to be decided: the first was whether the Applicant was constructively dismissed or chose to resign and the second was whether the dismissal was harsh, unjust or unreasonable.
Was the Applicant constructively dismissed?
The relevant case law required Commissioner Riordan to objectively determine whether the resignation came about as a probable result of the employer’s conduct. Commissioner Riordan was also required to consider whether any “special circumstances” affected the resignation.
Commissioner Riordan held that the conduct of Bupa resulted in the termination of the Applicant’s employment and that the Applicant was constructively dismissed. Commissioner Riordan held that the Applicant’s “agitated and upset” state in the Meeting as well as the Applicant’s “poor command” of English and constituted “special circumstances”. He stated that Mr Brice ought to have taken “additional steps” to ensure that the Applicant understood “the circumstances of the investigation and the effect of her resignation”. Commissioner Riordan held that Mr Brice’s suggestion to amend the terms of the resignation to “immediate effect” caused the resignation to be “at the initiative” of Bupa and that his refusal of the Applicant’s resignation was procedurally unfair. This allowed the Applicant to access the unfair dismissal jurisdiction.
Was the dismissal was harsh, unjust or unreasonable?
The FWC held that Bupa did not have a valid reason for termination of the Applicant. Commissioner Riordan held that Mr Brice pre-determined that the applicant “deserved to be dimissed” prior to conducting a proper investigation, which caused Mr Brice to unreasonably refuse the Applicant’s request to withdraw her resignation.
Commissioner Riordan also heavily criticised the colleague who filmed the Applicant labelling the recording as a “blatant breach” of her privacy, and a potential breach of the Privacy Act 1988 (Cth). Whilst the legality of the covert video surveillance by the colleague was not within the jurisdiction of the FWC, Commissioner Riordan held that the content of the Video Recording was misconstrued by Bupa and that the Applicant was not laughing at the death of residents and that it was reasonable to ignore resident buzzers whilst on a break. Commissioner Riordan also stated that the singing was “not meant to be condescending, nor would it have been taken that way by the resident”.
The lack of a valid reason for dismissal coupled with the deficiencies in the procedural fairness of the investigation process culminated in the decision that the dismissal was both harsh and unjust. In particular, the FWC were critical of:
- Bupa’s failure to provide the Applicant with clear allegations in writing. In turn, providing her with no real opportunity to respond;
- Failing to show the Applicant the Video Recording from which the allegations arose; and
- Failing to ensure that the Applicant understood the details of the investigation and the effect her resignation
Commissioner Riordan considered reinstatement appropriate, taking into account submissions that the Applicant was a “dedicated worker” whom “has an excellent rapport with the residents” as well as the fact that Mr Brice no longer worked at the Facility. In addition to her reinstatement, the FWC made orders for the Applicant to be paid for the period between dismissal and reinstatement. If you have any questions regarding procedural fairness in disciplinary or termination processes please contact Nick Stevens, Megan Cant or Jane Murray. Ms Shahin Tavassoli v Bupa Aged Care Mosman  FWC 3200.