Home - This is what happens when you get the disciplinary process wrong

UpdatesMay 28, 2018

This is what happens when you get the disciplinary process wrong

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.

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:

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:

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:

Copied