By Kelly Godfrey

An aged care service provider who failed to allow a worker respond to misconduct allegations and then sacked her has had to reinstate the worker and back pay her for the eight months of wages she had missed since her dismissal.

In Tavassoli v Bupa Aged Care Mosman (2017), Bupa Aged Care Mosman (Bupa) employed Ms Tavassoli, a refugee from Iran whose English was limited.

Bupa alleged that during 13–15 November 2016, Ms Tavassoli had:

• been singing at work “I can do anything better than you” after a heated exchange between a nurse and a resident;
• laughed and joked about the death of two residents; and
• sat in the TV room ignoring residents’ buzzers.

On 16 November 2016, Ms Tavassoli was escorted from the premises and told that there had been serious allegations made against her.

Ms Tavassoli concluded that the allegation might involve an incident in which a resident offered her beer. Ms Tavassoli had a colleague assist her to draft a letter of resignation, providing four weeks’ notice.

During the meeting with Bupa, the company refused to accept Ms Tavassoli’s resignation. Instead, Bupa read out the allegations (above) and advised her that she was being suspended on pay.

Bupa did not provide the worker with a copy of the video footage it had, which it alleged supported its allegations. Nor did Bupa provide Ms Tavassoli with a copy of the written allegations.

Bupa advised the worker she would need to participate in an investigation if she did not alter the notice provided on her resignation letter. So, Ms Tavassoli forfeited the four weeks’ notice and Bupa accepted her resignation.

However, Ms Tavassoli attended for work the next day and withdrew her resignation, which Bupa refused to accept.

She then filed an unfair dismissal application with the Fair Work Commission (FWC).

The Verdict

The FWC held:

• Ms Tavassoli had been constructively dismissed by Bupa;
• Bupa should have ensured Ms Tavassoli understood what was required of her in an investigation;
• Bupa should have ensured Ms Tavassoli understood the effect of her resignation;
• Bupa had not provided Ms Tavassoli with a proper opportunity to respond to the allegations, namely:
  • Ms Tavassoli was not provided with copies of the allegations and was not provided with time to consider them and to discuss them with her family;
  • Ms Tavassoli was not provided with a copy of the video footage;
• Ms Tavassoli had not resigned of her own free will, given her poor English language skills and her emotional state;
• by suggesting an amendment to the worker’s resignation letter, Bupa had initiated the dismissal;
• Bupa had not acted appropriately in escorting Ms Tavassoli from the premises without providing a sufficient reason for such a process, leaving Ms Tavassoli to draw her own conclusions;
• Bupa has a dedicated and well-resourced HR team – however, the procedures they followed in relation to Ms Tavassoli’s disciplinary process were unprofessional, discourteous and unfair;
• there was no valid reason for dismissal on the basis that Ms Tavassoli:
  • had not been acting in a disrespectful manner when she sang;
  • had not laughed at the deaths of residents; and
  • was on a break when she had not responded to residents’ buzzers; and
• the termination was harsh, unjust and unreasonable.

Bupa had to reinstate Ms Tavassoli and pay her for the period November 2016 to July 2017.

Lessons for you

Having a clear process to follow for investigating alleged employee misconduct could have saved the employer in this case a lot of time and money.

Notably, employers should:

• provide employees with sufficient information to respond to the allegations;
• take extra care when employees are emotional and/or where English is not their first language;
• provide the employee with an opportunity to bring a support person to any meetings;
• not rely on video footage alone; and
• provide accused employees with an opportunity to respond.