Natural Justice – Privacy and Reliance on Covert Workplace Surveillance

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.

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.

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