Why Employers Can't Afford to Ignore Procedural Fairness

Vince Scopelliti - Wednesday, August 01, 2018

It is important for employers to keep procedural fairness top of mind when conducting workplace investigations or taking disciplinary action.

Failing to do so can result in terminations being deemed unfair, as the recent Fair Work Commission decision of Nicholas Jarmain v Linfox Armaguard Pty Ltd [2018] FWC 3255 (14 June 2018) shows. 

background of the case 

Linfox Armaguard dismissed casual employee Nicholas Jarmain in October 2017 for serious misconduct. While the Fair Work Commission found the termination was justified, it determined that Mr Jarmain had been unfairly dismissed due to insufficient procedural fairness.

Mr Jarmain was dismissed after a client complained that he was "overly engaged in interaction and discussion" and generally inappropriate with staff members and customers of the client.

In response to the allegations, Mr Jarmain was asked to undergo an interview with a security officer and a union support person present. Explanations for his behaviour were sought (and his answers recorded) during the interview, and Mr Jarmain was then suspended from duty.

At a meeting three weeks later, Mr Jarmain was given further opportunity to explain the circumstances giving rise to the complaints against him. However, as his preferred union delegate was injured and unable to attend, the employer substituted their own preferred union official for that meeting.

The employer terminated Mr Jarmain's casual employment the next day, citing wilful and deliberate breaches of safety and security procedures. 

Breaches of procedural fairness

In the interest of procedural fairness, Mr Jarmain's employer should have advised him what claims were being investigated before asking him to participate in a recorded interview.

This was considered to be particularly egregious given that the employer is a big company with sufficient access to HR professionals. HR could (and indeed should) have been relied upon to ensure that Mr Jarmain was afforded procedural fairness when facing disciplinary action.

While the employer's reasons for dismissing Mr Jarmain were "sound, defensible and well-founded", especially given the job involves loaded weapons, the Commission concluded that the flaws in procedure, such as failing to provide any formal warnings or reprimands, were significant. 

The Commission determined that Mr Jarmain had not been given sufficient notification of the circumstances surrounding the complaints against him, or indeed the events giving rise to the complaints - and that he had effectively been ambushed, without sufficient information to defend himself against the claims. 

This meant that both Mr Jarmain's interview and ultimate dismissal were contrary to the requirements of procedural fairness.

Additional failures included the employer selecting the support person assisting Mr Jarmain in the second interview (as opposed to permitting the employee to pick his support person). By making such a decision it was akin to removing Mr Jarmain's right to have a support person present at all.

Further, the employer should not have suspended Mr Jarmain without pay.

the final decision

Ultimately, given the nature of the industry in which Mr Jarmain was employed, Commissioner Cambridge declined to order reinstatement of the employment but ordered compensation payments to the tune of $8,592.

This case demonstrates that having a valid reason to dismiss is only one factor that is considered in unfair dismissal claims. The Commission will not hesitate to award judgments in favour of the applicant where the employment was terminated in a manner that is not procedurally fair.

If you would like to ensure your investigation process is fair, WISE provides full and supported investigation services, as well as training.  

Managing Relationships in the Workplace

Vince Scopelliti - Wednesday, April 11, 2018

Anyone who has been following the news recently will be aware that scandalous sexual relationships in the workplace have become something of a common theme. 

The stories of Seven West Chief Executive, Tim Worner and his former executive assistant (a relationship which ended in legal action), the forced resignations of senior AFL executives over their relationships with younger staff, and the notorious pregnancy of former Deputy Prime Minister Barnaby Joyce's staffer have all been highly publicised. 

The ironic fallout of Mr Joyce's relationship is the so-called "bonk ban", instituted by Prime Minister Malcolm Turnbull. That ban is intended to prevent all relationships between ministers and their staff, and presumably avoid another scenario such as Mr Joyce's extra-martial affair. 

But is this something which employers can actually impose? Particularly in circumstances where many romantic relationships are forged in the workplace?

can employer prohibit relationships in the workplace?

Although it is virtually unheard of for blanket bans on all relationships to be imposed in any workplace, it is not uncommon for disclosure policies to be introduced. 

The intention of such policies is to require staff members to disclose sexual relationships which could result in a conflict of interest, for example when the relationship is between a supervisor and their subordinate.

Such a code of conduct is designed to manage situations where the interests of the business may be in direct conflict with the romantic or personal interests of the employees. 

Actual conflicts of interest vs perceived conflict of interest

Arguably any relationship in the workplace - not necessarily even a romantic one - could lead to a conflict, particularly when the relationship falls apart or ends badly. This can result in staff feeling unable to work together or believing that they are being victimised by their former lover or friend. 

However, it is important to understand the difference between an actual conflict, and a perceived conflict. 

The Fair Work Commission's decision of Mihalopoulos v Westpac Banking Corporation [2015] FWC 2087 illustrates the difference. In this case, a Westpac bank manager was dismissed from his role due to his conduct arising out of his relationship with one of the bank's employees. 

According to Westpac, Mr Mihalopoulos was dismissed because he was dishonest about his relationship with the worker, breached an apprehended violence order imposed by the worker (after the relationship ended) and inappropriately discussed details of their relationship with his subordinates. 

During the course of the hearing, Mr Mihalopoulos admitted that he had put forward his lover for promotions while they were in a relationship, despite denying their relationship to superiors. 

The Fair Work Commission ultimately determined that employers were entitled to expect that their workers were honest about the nature of relationships that had formed, so that any conflicts of interest arising from these relationships could be managed. 

Further, Mr Mihalopoulos' ongoing and repeated dishonesty about the circumstances of his relationship meant that the business was not in a position to appropriately manage conflicts and therefore manage its own risk. Accordingly, Mr Mihalopoulos' unfair termination application was ultimately dismissed. 

How can relationships be managed in the workplace?

In order to manage the minefield of personal relationships in the workplace, Human Resources departments should ensure that both conflict of interest and disclosure policies are in place, which employees should sign up to as part of their terms of employment. 

Once a disclosure has been made, the conflict of interest policy should provide steps to be taken to minimise ongoing risks to the business. For example, staff might be reassigned to different supervisors to ensure that appropriate disciplinary action can still be taken. 

It is critical not only that these policies exist but that they are clearly communicated to all staff, and that staff are made aware of the potential consequences of failing to adhere to these policies, including redeployment or dismissal. 

If you need assistance in managing workplace relationships at your organisation, contact us. Our team can help formulate policies around disclosure and conflict of interest, and can investigate allegations of misconduct. 

Inside the Fair Work Commission: How it Operates

Vince Scopelliti - Wednesday, March 14, 2018

Most employers and employees are likely have at least some contact with the Fair Work Commission (FWC) during their working lives. 

This might be as simple as obtaining information about award conditions and employee rights, or as contentious as appearing before the FWC in a workplace dispute or unfair dismissal matter.

So how does the Fair Work Commission work?

The basics of the fwc

The FWC is the national workplace relations tribunal. Created by the Federal Government, it is an independent body that oversees a range of employment-related matters.

Its members are independent office holders who are appointed by the Governor-General on the recommendation of the Federal Government. Members work in a panel system, which aims to ensure that matters are heard by members with specific expertise in the relevant area. 

The FWC is not to be confused with the Fair Work Ombudsman, whose role it is to enforce compliance with the Fair Work Act and associated legislation, as well as provide advice to employers and employees on industrial relations matters. Unlike the FWC, the Ombudsman cannot conduct investigations or hearings.

what matters does the fwc deal with?

The FWC has the right to make decisions on a wide range of employment issues, including:

  • Determining minimum wage and working conditions
  • Hearing disputes in relation to unfair dismissals or other disciplinary actions
  • Making decisions in relation to appropriate industrial action
  • Conducting and facilitating alternative resolution methods in relation to general workplace disputes and workplace protections  

When making decisions, the FWC is required to take into account factors such as:

  • The principles of equity and good conscience
  • An assessment of the merits of the case before it
  • Avoiding any type of discrimination in the workplace, whether that be sexual, religious, disability or age based, to name a few

how to get a matter heard before the fwc

In order for a matter to be heard by the FWC, an appropriate form needs to be submitted in accordance with the applicable Fair Work Commission Rules.

In certain circumstances, such as when conducting reviews into awards or wage reviews, the FWC is empowered to launch its own action. 

fairness a key focus of hearings

The FWC is obliged by legislation to facilitate reasonably swift actions, and operate informally - without resorting to complicated legal concepts which could make it difficult for the ordinary worker to participate in proceedings. 

One of the central tenets of the FWC requires that hearings be conducted impartially and fairly. During hearings, the members are required to determine the facts and make decisions based on the information put before them. Ultimately, the main purpose of a hearing is to facilitate dispute resolution between the parties. 

Can the FWC dismiss an application? 

An application may be dismissed outright by the FWC in circumstances where it is:

  • Frivolous or vexatious
  • Contrary to the applicable legislation
  • Doomed to fail
  • Clear that one of the parties has unreasonably failed to attend hearings or comply with orders or directions of the FWC. 

What the FWC can't do

Despite being a quasi-legal body, the FWC is not entitled to provide legal advice, or assistance.

It is also not permitted to act in a partisan fashion by representing any particular political party. It must focus on impartial and objective decision making.

Do you need assistance in dealing with the FWC?

WISE Workplace is highly experienced at conducting investigations into allegations of workplace misconduct across government, education, not-for-profit and private sectors. 

We are proud that none of our decisions have been challenged by the FWC. If you are looking for assistance to navigate the challenging issues of workplace misconduct, we provide investigation services and training - Contact WISE today.  

A Modern Problem: The Face of Workplace Bullying in 2017

Vince Scopelliti - Wednesday, December 20, 2017

Workplace bullying comes at a high price for Australian businesses and employees, costing billions and leaving a trail of physical and mental health issues in its wake. 

Even though employers are becoming increasingly conscious about bullying and most have anti-bullying policies in place, it is still very prevalent in 2017. 

We take a look at what types of behaviour constitute workplace bullying, its magnitude, and some of the key cases heard by the Fair Work Commission (FWC) this year.

the nutS and bolts of it

Workplace bullying can come in many forms. It can be broadly defined as repeated unreasonable conduct and can include different types of abusive behaviour, whether physical, verbal, social or psychological, that occurs at work. It does not matter whether the behaviour is engaged in by a manager, a boss, or co-worker, or what the employment status of the victim is. 

Many different types of behaviours can fall within the meaning of workplace bullying. Some of the most obvious ones include:

  • Physical intimidation or violence
  • Excluding co-workers from social or work-related interactions
  • Mocking or joking at the expense of somebody in the workplace
  • Spreading gossip or rumours
  • Threats of violence or abuse

There are also a number of more subtle types of abuse frequently being employed in workplaces. According to research released in June 2017, these include: 

  • Unnecessarily micro-managing an employee so that they cannot perform their role effectively - or not providing enough supervision and support in order to permit a job to be performed competently
  • Consistently providing work well below an employee's competency 
  • Frequent reminders of errors or mistakes
  • Setting unreasonable deadlines or timeframes
  • Ignoring opinions or input
  • Exclusion from work or social events. 

what is the extent of workplace bullying

Workplace bullying is prevalent in Australia. 

According to research undertaken for BeyondBlue, almost half of Australian employees will report experiencing some type of bullying during their working lives. Workplace bullying can impact performance and career progression, and result in a range of physical and mental health issues. 

It is estimated to cost Australian organisations up to $36 billion a year. 

the need for an anti-bullying culture

In order to appropriately respond to the many different types of bullying - including some of the more hidden, indirect types of bullying set out above - employers must implement clear and direct anti-bullying policies outlining what type of behaviour is considered to be unacceptable. 

Rather than solely focusing on punitive measures for dealing with inappropriate behaviour, employers are also encouraged to attempt to build a positive workplace culture through feedback, independence and trust. 

WHen employers are accused of bullying 

Given that almost anything could potentially lead to allegations of bullying, it is not surprising that many employers are concerned about being unable to treat employees with anything other than kid gloves. 

However, employers are within their rights to performance manage, discipline, retrench or otherwise alter the employment conditions of an employee in appropriate and legally permitted circumstances.  

how did the fair work COMMISSION view bullying in 2017

A number of cases before the FWC this year highlighted the need for fair and unbiased investigation of bullying allegations, and demonstrated that employers taking appropriate steps to discipline or dismiss an employee won't be penalised. 

Case Study 1: The email is mightier than the sword

In early 2017, FWC upheld a ruling that Murdoch University was right to terminate an employee for serious misconduct. That employee had sent a number of abusive emails - from his university work account - to the chief statistician of the Australian Bureau of Statistics (ABS). 

Even after complaints were forwarded by the ABS directly to the University, the employee continued to send emails to the chief statistician, and forward those on to third parties, including a federal member of parliament. In one of those emails, the worker tacitly acknowledged that his behaviour was bullying, and stated that 'bullying is the only way to deal with bullies'. 

Prior to his correspondence with the ABS, the employee had already emailed another colleague and accused her of being deliberately dishonest and suffering from mental health issues. 

Ultimately, Murdoch University stood down the employee on full pay while an investigation was conducted. It also took steps to change investigators on more than one occasion, after the employee complained about the staff investigating the matter, before ultimately dismissing the employee. 

This case is an important reminder for employers that taking appropriate and lawful steps to investigate and, if necessary, terminate employment will not constitute bullying.

Case Study 2: Lawful adversaries - bullying in law school

In another bullying case involving a university, a Deakin University law lecturer sought the imposition of anti-bullying orders on a co-worker.

Although the accused professor had previously been charged with misconduct while working at another university, the FWC refused to allow the provision of materials relating to those earlier allegations. It noted that previous management behaviours of the professor were not relevant to new claims of bullying. 

Those materials also reportedly contained commercially sensitive information regarding other employees. This reinforces the message that employers and senior staff should not feel as though they are prevented from taking steps to discipline staff without being accused of bullying, despite any previous allegations. 

Case Study 3: A failure to properly investigate

Employers must take care to properly investigate all allegations of bullying within the workplace, not only to protect the victim but also to afford due process to the accused. 

This was the case in a recent FWC decision, which determined that a mother and daughter had been unfairly terminated amidst allegations of bullying and fraud. 

The director of the abortion clinic in which the mother and daughter worked had terminated their employment after registered nurses made various complaints about the duo, including that they took excessive smoke breaks, failed to record information properly in time sheets, and had made inappropriate threats of dismissal to the nurses. 

The director failed to appropriately investigate the allegations and, crucially, did not give the terminated employees sufficient time to properly respond. The FWC found that this demonstrated favouritism and nepotism (in circumstances where the director had apparently wanted to install his own wife and daughter in the newly available roles). 

Case Study 4: Getting it both right and wrong

Even when an employer's disciplinary actions are ultimately deemed to be appropriate in all relevant circumstances, their response may still fall far short of best practice. 

That was the case when the Paraplegic and Quadriplegic Association of NSW (Paraquad) was held to have properly dismissed a carer whose major depressive disorder meant that she no longer had the capacity to properly fulfil her role. 

However, the employee complained before her dismissal that she had suffered years of bullying and harassment which had exacerbated her psychiatric condition. This was not properly taken into account by Paraquad's HR department - even when provided with medical evidence supporting the employee's allegations as to the source of her condition. 

The FWC was particularly critical of the HR department's decision not to properly investigate the bullying allegations, because the employee had not followed workplace protocol in making her complaints. 

Case Study 5: Lessons in discourse

 Another interesting development this year revolved around language. Fair Work Commissioner Peter Hampton explained at the annual Queensland IR Society Convention in October 2017 that he eschews the use of words such as 'bully', 'victim', or 'allegeable'. It is advisable to avoid unhelpful labels which might shoehorn parties into certain roles. 

A similar approach is being encouraged in the Queensland Public Service Commission, particularly when dealing with domestic violence, where labels such as 'perpetrator' are actively discouraged and a rehabilitative approach is desired. 

The take home message

So what lessons can employers take away from the way the FWC has dealt with bullying in 2017? In summary employers should:

1. Take all complaints of bullying seriously, and conduct unbiased, fair investigations

2. Ensure that those accused of offences are afforded due process and have the opportunity to respond to allegations against them

3. Take positive steps to devise and implement workplace policies which make it clear that bullying behaviour will not be tolerated and will be investigated as necessary

4. Ensure that any action taken to discipline or dismiss an employee is reasonable and appropriate. 

For expert assistance with these and any other matters related to workplace investigations and how to respond to workplace bullying complaints, contact WISE Workplace today.  

When Gender is Irrelevant: Male-On-Male Workplace Harassment

Vince Scopelliti - Wednesday, November 08, 2017

Sexual harassment and predatory behaviour can happen to anybody. When most people think about this type of conduct, it is generally in the context of male-to-female harassment or, perhaps more rarely, female-to-male harassment. However, this is simply not the case - sexual harassment can be perpetrated by anybody towards anybody. 

A recent decision of the Civil and Administrative Tribunal of NSW highlights the potential for employees to be victims of sexual harassment and victimisation in the workplace, regardless of their gender. 

The decision in Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty also affirms the entitlement of workers to financial compensation when they have been subjected to sexual harassment. 

Inappropriate behaviour

In Kordas, the worker complained about various instances of inappropriate behaviour and sexual harassment during his employment as an apprentice hairdresser working for the respondent. 

The behaviour complained of by the worker included:

  • Being told by his employer that workers were similar to racehorses because 'they need a pat on the bum to go faster'.
  • Having his supervisor tell clients that he and the worker were similar to a gay couple and that they were very 'close'. 
  • Being followed into a private area, slapped on the buttocks with a ruler by his trainer and being asked to smack him back because the trainer 'like[d] being slapped on the bum'.
  • Humiliation by the trainer when he threw a hair clip onto the ground, in the worker's opinion, because the employer wanted to see him bend over. 
  • The trainer complaining that the worker had incorrectly clipped a cape onto a client
  • Feeling harassed when the worker asked the trainer if he felt they got along and the response was yes, because 'you're my bitch'. 
  • Upon complaining to his employer and asking why he was referred to as the salon 'bitch', being told 'I used to work in a restaurant. All the boys used to grab me by my boobs'. 
  • Being grabbed around the waist and physically moved by his supervisor instead of being asked to move out of the way. 
  • Having his palm stroked in a flirtatious manner by his employer when he was handed money for errands. 

The worker had initially complained to his boss, who was also the director and owner of the business running the hair salon, about being victimised. But no action was taken, and the worker was ultimately dismissed. 

The history of complaints

The apprentice stated that he had not complained initially about the inappropriate behaviour because he had wanted to keep his job. 

However, in February 2015, the worker finally complained to the employer about various issues he was experiencing, including very low wages, ongoing harassment and feeling that he was being sabotaged. Although the employer initially promised that everything would be sorted out, he then made the above mentioned comment, likening hairdressers to racehorses. 

At this time, the worker demanded changes in his treatment, but the employer denied ever having received any complaints or personally witnessed any harassment. 

The employer then advised the worker that there were no senior staff available to continue his training and dismissed him. The stress and emotions suffered by the worker as a result of this treatment ultimately caused him to leave his chosen profession of hairdressing, working instead as a barber. 

Findings of the tribunal

Upon hearing the complaints, Tribunal Senior Member Scahill and General Member Newman commented that although the harassing behaviour was not the worst they had ever seen, it had clearly impacted upon the apprentice in a very significant way and had caused him to change his future career plans. 

The nature of some of the inappropriate behaviour was found to be sexual harassment, particularly the physical contact and comments regarding being a 'bitch' and a 'gay couple'. Moreover, the significant disparity in power between an employer or senior employee and an apprentice was such that the worker was reasonably and clearly intimidated, humiliated and harassed. 

The employing business was also held vicariously liable for the conduct on the basis that it had failed to ensure a workplace free of harassment and had failed to appropriately respond to the worker's complaints. 

The worker was awarded compensation comprising:

  • $5,000 in general damages for the sexual harassment by the employer
  • $10,000 in damages for the trainer's sexual harassment
  • $15,000 for victimisation

As this case demonstrates sexual harassment and inappropriate conduct can occur in any workplace, and between any gender. If you are concerned about a case of potential harassment at your organisation, contact us for assistance. We offer both supported and full workplace investigation services. 

Bullying in High Stress Workplaces: Can an Investigation Help?

Vince Scopelliti - Wednesday, August 30, 2017

A disproportionately high number of allegations of bullying in emergency services and other high stress environments have led to a referral to the NSW parliament for an inquiry in May 2017, looking at the policy response to bullying, harassment, and discrimination in certain emergency services. A review is also being conducted by the Victorian Equal Opportunity and Human Rights Commission of allegations of bullying and harassment into the MFB and CFA. 

The very nature of the tasks undertaken in these workplaces understandably provokes a variety of extreme responses in both senior and lower-level staff. A combination of observed trauma, time-critical demands and associated spikes in adrenaline for individual professionals can lead to tense communication and decision-making.

It is essential that Human Resource (HR) managers take an objective approach towards all issues raised by the parties when allegations of bullying in emergency services arise. 

In many cases, a well-planned workplace investigation will mark the difference between costly repercussions and an efficient resolution of issues within these high stress environments. 

Alarming workplace reports

Incidents of workplace bullying are on rise across Australian emergency contexts. A 2017 report on emergency departments highlighted the deplorable extent of workplace bullying reported amongst emergency doctors. Shaming, verbal abuse and sexual harassment were just some of the parlous behaviours reported by 1/3 of survey participants.

Similarly, NSW has announced that the extent of workplace bullying within emergency services now requires a dedicated investigation. There are indications that the hierarchical nature of these services leads to the depersonalised treatment of personnel involved. 

Submissions for the NSW Parliament inquiry closed in July, with hearings scheduled for September - October 2017. During the inquiry, police, ambulance and fire services will each be scrutinised in relation to allegations of bullying and the troubling aftershocks that can accompany such incidents. 

Workplace bullying and hr responses

The importance of HR departments in recognising and dealing promptly with allegations of workplace bullying in emergency services cannot be overstated. 

As part of this focus, it is essential that any workplace investigation into alleged bullying be carried out in a professional and objective manner. Moreover, important decisions need to be made about an organisation's capacity to conduct an investigation that complies with the demands of procedural fairness. 

In some matters that are likely to prove particularly complex or sensitive it might be preferable to source the expertise of a trained workplace investigator. 

If HR managers can find prompt and accurate answers to these questions, any future costs of workplace disputes are likely to be mitigated. 

THE good and the bad of workplace investigations

Unfortunately, even a workplace investigation, if carried out without careful preparation and execution can be entirely unproductive - or even a costly blow to the organisation. At times, employers can underestimate their own lack of objectivity during investigations of workplace bullying. Unlike many workplace procedures, knowing the people involved can actually prove a hindrance to workplace investigations. The ability to see things in a truly fresh and clear manner is crucial to investigations; and sometimes hard to muster if preconceptions exist. 

Some employers are fortunate enough to have within their ranks staff that are fully trained in the nuances of workplace bullying allegations and the right way to conduct workplace investigations. When carried out correctly, an in-house investigation can do all that is necessary to produce a fair and accurate investigation report. 

Yet if any doubt remains about the potential bias, pre-judgement or lack of resources within the organisation, then an external workplace investigation will pay dividends. If an investigation has fatal flaws that are later picked up in official proceedings, then employers will find themselves in an unenviable position.  

investigation woes: a case in point

In a recent Federal Court matter, Justice North made a piercing analysis of the deficiencies in one organisation's methods of investigation. Victoria's Royal Women's Hospital conducted a workplace investigation into the alleged contribution made by a neonatologist to the deaths of two infants. His Honour explained that the deficiencies within the investigation report were significant. Vague allegations against the worker and the lack of specifics concerning event, time and place led to a report that was devilled by 'apparent holes' as well as 'pollution' from fraught relationships. 

The case highlights the importance of gaining true objectivity from the situation whenever a workplace investigation is undertaken.

Care at every turn

Employers understand that when allegations of workplace bullying arise it becomes essential to keep the elements of procedural fairness front-and-centre. HR and senior management must make fast and accurate decisions about how and when to activate a workplace investigation. 

Considering the disproportionately high number of allegations of workplace bullying in emergency services, it is hoped that good decisions are made around the best way to investigate these troubling situations. 

Should you or your organisation be seeking clarity on the best way to conduct a workplace investigation, please get in touch with us. 

Natural Justice - Privacy and Reliance on Covert Workplace Surveillance

Vince Scopelliti - Wednesday, July 26, 2017

In a recent decision of the Fair Work Commission (FWC), a nurse has been reinstated following her termination in circumstances where covert video surveillance was the 'sole foundation' of allegations against her. The FWC also found that her employer's human resources department acted incorrectly and inappropriately in the circumstances surrounding her dismissal.

facts of the case

Ms Tavassoli, an Iranian refugee, was employed as a nurse at a Bupa Aged Care Australia Pty Ltd nursing home located in Mosman, NSW. 

In Tavassoli v Bupa Aged Care Mosman [2017] FWC 3200, she claimed that she had been constructively dismissed after being falsely accused of serious misconduct by her employer. 

A colleague of Ms Tavassoli's had secretly recorded her on a personal mobile phone, which allegedly showed Ms Tavassoli:    

  • Making fun of a resident
  • Singing select, mocking lyrics from a musical including "Anything you can do, I can do better."
  • Continuing to drink tea with another co-worker while residents were calling for help.
  • Laughingly telling a colleague that she was lucky to have swapped a shift during which two patients passed away. 

Ms Tavassoli's colleague took the footage to the facility's acting general manager and care manager. 

In response, the very next morning, the general manager took Ms Tavassoli, off-site for a disciplinary hearing. Despite pulling Ms Tavassoli out of a training session the general manager did not inform her what allegations had been made against her, and caused her to wait for two hours before the meeting actually took place. 

During that time, Ms Tavassoli thought about what accusations may have been made against her and became concerned that she would be accused of theft after a patient had gifted her with some beer. Accordingly, Ms Tavassoli drafted a resignation letter. 

When the meeting finally took place, Ms Tavassoli was accused of various types of misconduct. Although she didn't fully understand the accusations against her, Ms Tavassoli tendered her resignation, providing four weeks' notice. However, the general manager advised her that the resignation would be effective immediately, and requested that Ms Tavassoli amend the resignation letter to remove the reference to a four-week notice period. 

Ms Tavassoli attempted to withdraw her resignation only two days later but was denied this right. 

decision of the commission

In deciding to order that Ms Tavassoli be reinstated to her former position, Commissioner Riordan determined that:

  • Ms Tavassoli had been constructively dismissed
  • The general manager acted without due procedural fairness when he refused to permit Ms Tavassoli to withdraw her resignation and return to her former position. 

A particular factor taken into account by Commissioner Riordan was that Bupa is a large organisation, with considerable resources. As a result, he concluded that the human resources department should have followed appropriate processes in dealing with Ms Tavassoli, and crucially should have shown Ms Tavassoli the video evidence collected against her. This was heightened by the employer's knowledge that Ms Tavassoli's English skills were poor. 

The decision not to show the footage was considered to deny Ms Tavassoli the right to know what case she had to answer. Indeed, Commissioner Riordan went so far as to suggest that the human resources department failed in their obligations to Ms Tavassoli and committed 'a form of entrapment' by not showing her exactly what information had been gathered against her. 

He found that the employer had made a determination of Ms Tavassoli's guilt immediately upon seeing the footage, and had failed to undertake any proper investigation as to the circumstances surrounding the behaviour. 

Commissioner Riordan further noted that, by requesting that Ms Tavassoli amend the terms contained in her resignation letter, the general manager effectively 'took over' the termination, which supported a finding of constructive dismissal. 

He was also highly critical of Ms Tavassoli's colleague who had taken the recordings, but accepted that the Commission did not have any rights to proceed against the colleague.

Against this background, Commissioner Riordan ordered that Ms Tavassoli be returned to her former role. 

Legality of secret recordings

Perhaps the most crucial factor in Commissioner Riordan's decision was his concern that the video recordings breached the Workplace Video Surveillance Act 1998 (NSW)

According to the Act, any surveillance conducted by an employer in the workplace is considered 'covert' unless the employee:  

  • Is notified in writing, before the intended surveillance, that it will take place.
  • The surveillance devices are clearly visible.
  • Signs are clearly noticeable at each entrance which point out that employees may be recorded in the workplace. 

Even though the employer did not take the footage in this case - with the recordings instead being made by a colleague of Ms Tavassoli - the fact that the employer relied upon the footage to discipline Ms Tavassoli was considered by Commissioner Riordan to be a sufficient breach of her privacy to run afoul of the Act. 

The Key message FOR EMPLOYERS

The takeaway message for employers here is twofold. Firstly, it is always essential that employees have the opportunity to respond, in detail, to allegations which are made against them, as well as being presented all the evidence which is being relied upon to support the allegations. Secondly, employers must be careful not to rely upon inappropriately obtained evidence which contravenes privacy legislation or any other relevant laws. Employers must comply with any applicable surveillance laws when relying on such evidence.   

Should you require an external workplace investigation into allegations of misconduct, contact WISE Workplace