DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Shahin Tavassoli
v
Bupa Aged Care Mosman
(U2016/14357)

Application for an unfair dismissal remedy.

[1] Ms Shahin Tavassoli was employed by Bupa Aged Care Australia Pty Ltd (or its predecessors) on 23 August 2003. Ms Tavassoli resigned from her employment on 16 November 2016. Ms Tavassoli is claiming that she was constructively dismissed due to the false accusations about her conduct and the indignant treatment that she was subjected to immediately prior to her disciplinary meeting and resignation. Ms Tavassoli claims that she was encouraged by Bupa to change her resignation letter and resign with immediate effect.

[2] Bupa have raised a jurisdictional objection to Ms Tavassoli’s application on the basis that she was not dismissed but resigned voluntarily.

[3] Leave was granted in accordance with section 596 of the Fair Work Act, 2009 (the Act) to allow Mr Chris McArdle from McArdle Legal to appear for Ms Tavassoli and for Mr Jamie Darams, of Counsel, to appear for Bupa.

[4] This matter was heard concurrently with U2016/14818. Whilst the evidence is similar, it is not the same. There are different issues in relation to each matter which, for the sake of clarity, separate decisions will be issued.

[5] I previously advised the parties that I have had some experience of dealing with a person with early onset dementia.

Issues

[6] The first issue to be determined is whether Ms Tavassoli simply resigned her employment or whether she was constructively dismissed.

[7] If Ms Tavassoli has been constructively dismissed, the second issue is whether her dismissal was harsh, unjust or unreasonable.

Background

[8] Ms Tavassoli was employed as Assistant in Nursing (AIN) at the Mosman aged care facility in 2003. Ms Tavassoli is a refugee from Iran and has raised her children on her own. Ms Tavassoli has limited English language skills and is 55 years of age.

[9] On the weekend of 13-14 November 2016, Ms Tavassoli was working day shift. Unbeknown to Ms Tavassoli, Mr Bishal Ranjit, a fellow AIN colleague on the same shift, secretly recorded Ms Tavassoli on two occasions on his mobile phone – producing a video recording with audio of the two situations. Ms Tavassoli was not consulted, nor did she agree, for Mr Ranjit to take the recording.

[10] The first video shows Ms Tavassoli sitting at a table in the resident’s dining room. Ms Govender (the Applicant in U2016/14818) and two residents are also at the table. Two Bupa employees (AIN’s) are standing behind the two residents. Ms Govender was engaged in a short conversation with a resident along the following lines:

“PN13 Resident – don’t, don’t do it to my eyes, I don’t want them on my eyes! Get out!

PN14 Shirley Govender – Hey! Stop it, don’t be rude,

PN15 Resident – I’ll be rude, I’ll be fit, I’ll be happy, I’ll be anything

PN16 Shirley Govender – You’re in a nursing home, ok? Be thankful to God that there is somebody to look after you,

PN17 Shahin Tavassoli – you said you bought a nursing home.

PN18 Shirley Govender – Ok? They are looking after you, the girls, so don’t be nasty to them. If they don’t look after you, who is going to look after you?

PN19 Resident – me.

PN20 Shirley Govender – You can’t even do anything.

PN21 Resident – I can do anything

PN22 Shirley Govender – You can’t even walk.”

[11] Ms Tavassoli then sang a line from the song “Anything you can do I can do better” singing “I can do anything better then you.”

[12] Ms Govender continued her conversation with her colleagues, although the conversation was basically one way with Ms Govender doing all of the talking, looking directly at the two employees who were standing behind the residents. Ms Govender then made the following comments:

“PN24 Shirley Govender (inaudible) – so Shane was crying, so you know, when she’s talking and you never (inaudible)... I ask Bimla to work

PN25 and she said “no Mumma, you know my sister is here, my Dad is here.”

PN26 I said “please Bimla, you know for Daniel’s sake” I said “never mind, do it mummy, you need the extra money to take your Dad out.

PN27 She said “no mamma you know my Dad is here, my sister is here, she ask me about 10 times.

PN28 I said to her “no darling, just do it just think that extra two hundred dollars you can spend on your Dad.”

PN29 I said “Ok Daniel, she’s doing it.” She didn’t say yes or no right? She comes, “3 people die on her shift”.

PN30 Shahin Tavassoli – And then I went room 8, she was…

PN31 Shirley Govender – from one room, one is dead to another room, another one dead, then to the next room…

PN32 Shahin Tavassoli – and then she goes to the other room and (inaudible) she was almost dead (both smiling towards camera). And I said, hurry up why scream instead of pressing the emergency, and then I press the emergency.”

[13] Bupa allege that Ms Tavassoli laughed at the fact that two residents had passed away on Ms Newpane’s overtime shift.

[14] The second video shows Ms Tavassoli sitting in a TV room next to a resident, who is sitting in a recliner chair. Ms Tavassoli has a cup in her hand. Also in the room were Ms Govender and Ms Newpane who were also drinking tea or coffee. The recording identifies resident’s buzzers going off whilst the three employees remain seated in the room having a conversation.

[15] Mr Ranjit showed his videos to Mr David Brice (Acting General Manager of the Mosman facility) and Ms Miriam Lyman (Care Manager) on 15 November 2016.

[16] On 16 November 2016, Ms Tavassoli was not rostered to work but attended a training session at the workplace in the afternoon. Mr Brice claims that he tried unsuccessfully to contact Ms Tavassoli twice in the morning to advise her not to attend the workplace. At approximately 2pm, Mr Brice went to the training room and asked Ms Tavassoli to step outside. I note that there was never any risk of Ms Tavassoli working with residents on this day.

[17] Mr Brice asked Ms Tavassoli to accompany him downstairs to have a “quick chat”. Ms Tavassoli repeatedly asked whether she has “done something wrong” as they walked downstairs. Mr Brice claims that he said “we need to have a discussion”.

[18] Surprisingly, Mr Brice escorted Ms Tavassoli out of the building, rather than to his office:

“29. When we reached the ground floor of the facility, Ms Tavassoli and I walked out the front of the home. There was no one around at this time. I said words to the effect of “I tried to call you to tell you not to come to training. There has been quite serious allegations made, and I’m waiting for some documentation to come through so I can discuss this with you. The documents should be here by around 3.45pm, so perhaps go and get a coffee in the meantime and come back then.”

30. At this time I was waiting for Ms Watson from the People Team to send through the final versions of the suspension letter and the letter that set out the allegations being made against Ms Tavassoli.” 1

[19] Ms Tavassoli has a different recollection of what transpired and alleges that Mr Brice was quite abrupt, advising her that he would not tell her what she had done wrong but continued to repeat the comment that it was “disgusting”.

[20] Ms Tavassoli sat outside the home for approximately two hours with no money, nowhere to go and no idea why she had been escorted off the premises.

[21] Whilst sitting outside on the footpath, deeply upset, Ms Tavassoli came to the conclusion that the allegation may involve a six pack of beer that had been offered to her by a resident. Ms Tavassoli testified that she did not want to be accused of being a thief or terminated for stealing due to her cultural background. As a result, when a colleague walked past her, Ms Tavassoli asked for her help to draft a resignation letter.

[22] Ms Tavassoli then re-entered the facility, handed Mr Brice her resignation letter – which contained a provision of 4 weeks’ notice. Mr Brice did not accept the resignation. Ms Lyman attended the meeting at approximately 4pm when Mr Brice, at Ms Tavassoli’s request, read out the letters from Bupa containing the allegations of misconduct, advising her of her paid suspension and the upcoming investigation of the allegations.

[23] Importantly, Mr Brice did not provide Ms Tavassoli with a copy of this correspondence.

[24] Ms Tavassoli claims that she did not fully understand the meaning of the correspondence however she did not want to participate in the proposed investigation. Ms Tavassoli pressed her resignation. Mr Brice advised that unless Ms Tavassoli changed the effective date of her resignation so that it had immediate effect, then she would still be required to participate in the investigation. Ms Tavassoli then scribbled out the 4 weeks’ notice and handed her resignation back to Mr Brice.

[25] The following day, on 17 November 2016, Mr Brice sent Ms Tavassoli a letter confirming acceptance of Ms Tavassoli’s resignation. On 18 November 2016 at 9am, Ms Tavassoli attended the home and attempted to rescind her resignation. Mr Brice refused the request.

[26] Ms Tavassoli then allegedly said to Mr Brice: “your days are numbered”. Mr Brice reported this threat to the police. Relevantly, the only witness to this conversation records Ms Tavassoli saying “my days are numbered”.

[27] Ms Tavassoli filed her unfair dismissal claim on 1 December 2017. At the time of filing her first witness statement on 21 February 2017, 2 Ms Tavassoli had still not received a copy of the Bupa correspondence which contained the allegations, nor had she been shown the video which had been recorded by Mr Ranjit.

Statutory Provisions

Section 386

Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(my emphasis)

Relevant Precedent

[28] The case law in relation to a constructive dismissal is settled and relatively uncontroversial. A Full Bench of the Australian Industrial Relation Commission conveniently summarised the relevant law in O’Meara v Stanley Works Pty Ltd 3 (O’Meara) where it found:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

(my emphasis)

[29] In relation to the issue of “an objective analysis of the employer’s conduct”, Justice Moore in Rheinberger said:

“However it is plain from these passages [in Mohazab] that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct”. 4

(my emphasis)

[30] In Kyle Bruce v Fingal Glen Pty Ltd 5, the Full Bench further qualifies the decision in Rheinberger:

“[23] The situation contemplated in this passage is one in which the act of an employer which led to an employee’s resignation was not intended to cause an employee’s resignation (as was the case in Mohazab), but “would, on any reasonable view, probably have that effect”. Rheinberger therefore qualifies the passage from Mohazab quoted above in two respects. First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”. 6 There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.”

[31] The British law introduced the concept of the “special circumstances” of the particular case in Australia, this concept was followed in Ngo v Link Printing Pty Ltd:

“12 We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd (1995) 63 IR 357 at 631-362 as follows:

‘in my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise…

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.’

Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the positions as follows:

‘If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (“being jostled into a decision”) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as “special circumstances”. Where “special circumstances” arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer’s risk…”

[32] In Barclay v City of Glasgow District Council, the Employment Appeal Tribunal held:

“223

On the other hand we do not consider that in the circumstances of this case the matter rests there. It is true that if unequivocal words of resignation are used by an employee in the normal case the employer is entitled immediately to accept the resignation and act accordingly. This has been authoritatively decided by the Court of Appeal in Sothern v Franks Charlesly & Co [1981] IRLR 278 to which we were referred. It is clear however from observations made in that case that there may be exceptions. These include cases of an immature employee, or of a decision taken in the heat of the moment, or of an employee being jostled into a decision by employers (Fox

[1983] IRLR 313 at 315

LJ at paragraph 21); they also apply to cases where idle words are used under emotional stress which employers knew or ought to have known were not meant to be taken seriously (Dame Elizabeth Lane, paragraph 25). There is therefore a duty on employers, in our view, in an appropriate case to take into account the special circumstances of an employee.

… Further we agree with the observation of the dissenting member that in the special circumstances of this case a reasonable employer would at least have consulted with one of the appellant's sisters before assuming that the appellant meant the words which he had used. For these reasons we propose to allow the appeal.”

[33] In Nohra v Target Australia Pty Ltd 7, Roberts C held:

“[10] In brief, Ms Nohra’s letter of resignation shows on its face that she did not intend the employment relationship to end almost immediately but rather, for it to end prospectively on 3 December 2010. Target’s action in purporting to accept the resignation but making it immediate was indisputably a termination at the initiative of the employer. Ms Nohra’s resignation letter was highly conditional and may, or may not, have constituted a constructive dismissal. That issue does not matter at this time as Target intervened to actively terminate the employment relationship immediately. Even if Ms Nohra was voluntarily standing on a metaphorical high ledge announcing that she would jump from employment in about seven months’ time, it was Target that then pushed her.”

(my emphasis)

[34] In Kelly Simpson v Mohammed Shahid Akram t/a Mad about Price 8, Gostencnik DP held:

“[12] A reasonable person in the position of the Respondent would not precipitously conclude that the Applicant intended to resign when she had uttered her words of resignation in temper or under great pressure from the Respondent or other circumstances 9. In such circumstances the Applicant was entitled to retract her intemperate resignation once the pressure is relieved, provided this was done within a reasonable period.”

(my emphasis)

Special Circumstances

[35] The citations listed above lead me to the requirement to assess whether Ms Tavassoli’s resignation was infused with any “special circumstances”, as defined, which may result in her resignation being defined as being at the initiative of the employer.

[36] Whilst Mr Brice could not recall whether Ms Tavassoli was upset during the interview, Ms Lyman was quite emphatic that Ms Tavassoli was crying and upset throughout the meeting 10. Ms Lyman was so concerned that she asked Ms Tavassoli if she would be ok to drive home or whether she would like her to organise alternative transport.

[37] It is not in dispute that Ms Tavassoli has difficulty with the English language 11 and that Ms Lyman had offered to provide her with English language classes12.

[38] Ms Tavassoli was unnecessarily removed from a training meeting to be advised by Mr Brice that there had been serious accusations made against her. Ms Tavassoli was then escorted from the premises by Mr Brice and told to return in two hours without being told of the nature of the accusations.

[39] It is not in dispute that Ms Tavassoli wrote her resignation letter with the assistance of a work colleague, giving 4 weeks’ notice. Ms Tavassoli removed the notice period at the suggestion of Mr Brice.

“Daniel said that if she wished to continue with her resignation then it would be effective immediately instead of with the 4 weeks’ notice.” 13

[40] Ms Lyman advised that Mr Brice had told her that Ms Tavassoli was of the opinion that the disciplinary meeting was in relation to whether or not she stole beer off a resident 14. Ms Tavassoli testified of the shame and humiliation attributed to stealing in her culture.

[41] It is not in dispute that Mr Brice sent Ms Tavassoli a letter on 17 November 2016 confirming and accepting her resignation.

[42] Ms Tavassoli attended the workplace the next morning and attempted to withdraw her resignation. Mr Brice refused this request. Relevantly, the following discussion occurred during the proceedings:

“PN2265

THE COMMISSIONER: Is there any reason why you didn't accept the request to withdraw the resignation? Because, at that stage, I'd seen the footage and I didn't – Ms Tavassoli had resigned and I felt it was best. I'd lost trust in Ms Tavassoli and that was my reason for not re-accepting the

PN2266

Is it fair to say though that during the interview where Ms Tavassoli resigned? Mm.

PN2267

you encouraged her not to resign? I encouraged her to go through the process.

PN2268

Yes? Of the investigation.

PN2269

"There's going to be an investigation"? Mm-hm.

PN2270

"Don't resign. Don't do it on the spur of the moment. These are only allegations. You've got nothing to prove in here. Don't resign"? Mm-hm.

PN2271

That was after she handed you the letter giving you four weeks' notice, I think it was? Mm.

PN2272

So you understand that Ms Tavassoli is partially literate in relation to written English and has some difficulty in understanding verbal English as well? Mm.

PN2273

She got caught up in the moment on the 16th, I think it was. Wouldn't it have been fair just to turn around, and say, "Well, okay, we accept you might've confused and flustered the other day. If you want to withdraw your resignation", then explain to her that the investigation would then continue like you offered her that some 36 hours beforehand? At that stage she had resigned and I had accepted, and as far as I was concerned that was fine.” 15

Jurisdictional Determination

[43] I have taken into account all of the submissions and the evidence that have been submitted by the parties in relation to whether Ms Tavassoli resigned or whether she was constructively dismissed.

[44] I find that Ms Tavassoli was extremely agitated and upset throughout the disciplinary meeting. I am convinced of this fact due to the undisputed evidence of Ms Lyman, whom I find to be a witness of credit. The fact that Ms Lyman was concerned about Ms Tavassoli’s capacity to drive herself home indicates that she was highly emotional.

[45] I find that Mr Brice’s refusal to accept Ms Travassoli’s recsission of her resignation to be procedurally unfair. Mr Brice refused this request because, after viewing the video, Mr Brice was of the view that Ms Tavassoli deserved to be dismissed and that she had lost his trust – even before an investigation had occurred.

[46] Ms Tavassoli’s evidence in the witness box confirmed, in my opinion, the views of both Mr Brice and Ms Lyman that Ms Tavassoli’s command of the English language is quite poor. It is evident that she struggles to comprehend or understand lengthy or complex questions. It is not in dispute that English is her second language.

[47] With this knowledge, I am concerned at the way that Mr Brice treated Ms Tavassoli on 16 November 2016. There was no logical reason to remove Ms Tavassoli from the training meeting that she was attending on her day off, especially when Mr Brice was not yet ready to proceed with the disciplinary meeting. To then escort Ms Tavassoli from the premises and advise her not to come back for two hours, without providing a valid reason for the process, was unconscionable conduct on the part of Mr Brice. As a result, Ms Tavassoli’s mind traversed into the realm of confusion and self-condemnation in an attempt to justify the actions of her long term employer.

[48] I find that Ms Tavassoli’s resignation was provided in circumstances that could be defined as being “special circumstances” as identified above. Mr Brice should have taken additional steps to ensure that Ms Tavassoli understood the circumstances of the investigation and the effect of her resignation. Ms Tavassoli should have been provided with copies of the letters and sent home to discuss them with her family. It is simply not satisfactory to say that Ms Tavassoli resigned of her own free will when Bupa knew of Ms Tavassoli’s poor language skills and her emotional state. For Mr Brice to suggest an amendment to the resignation letter creates the scenario that the termination becomes one at the invitation of the employer 16.

[49] If Mr Brice had not intervened to advise Ms Tavassoli to amend her resignation so that it had immediate effect, then Ms Tavassoli would have undoubtedly been dismissed at the same time as Ms Govender and had her unfair dismissal claim dealt with accordingly.

[50] As a result, I am satisfied that Ms Tavassoli’s resignation satisfies the test summarised in O’Meara. I find that Ms Tavassoli was constructively dismissed.

Statutory Provisions

[51] Having found that Ms Tavassoli was constructively dismissed does not mean that the dismissal was harsh, unjust or unreasonable. The relevant provisions of the Act in determining whether Ms Tavassoli has been unfairly dismissed are:

“Section 381

Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Section 382

When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Section 385

What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Section 387

Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Submissions

[52] It is not in dispute that Ms Tavassoli satisfies the minimum employment period, is covered by a Modern Award and an Enterprise Agreement and that Bupa is not a small business employer.

[53] The oft quoted joint judgement of McHugh and Gummow JJ, in Byrne v Australian Airlines 17 sets the parameters for these types of determinations;

“128. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. ...

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable...”

[54] The Full Bench of the AIRC in Australian Meat Holdings Pty Ltd cited this decision in definitive terms;

“The above extract is authority for the proposition that a termination of employment may be:

•  unjust, because the employee was not guilty of the misconduct on which the employer acted;

•  unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or

•  harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.”

[55] Bupa submitted that the video evidence speaks for itself and that it shows Ms Tavassoli being engaged in the following conduct:

a) whilst sitting in the resident’s meal room, Ms Tavassoli sings “I can do anything better than you” following a terse exchange between a resident and the Registered Nurse on duty, Ms Govender, where the resident had said “I can do anything” in response to a comment from Ms Govender. Bupa claim that Ms Tavassoli’s comment was disrespectful.

b) during the same conversation, Ms Tavassoli is seen to be laughing and joking at the death of two residents the previous week; and

c) on the following day, sitting in the residents TV room drinking a cup of tea alongside a resident (who was in a reclined chair) along with Ms Govender and Ms Newpane whilst residents buzzers were activated. The accusation is that Ms Tavassoli was neglecting her duty by ignoring the resident’s buzzers.

[56] In response Ms Tavassoli claims that:

a) she was not being disrespectful to the patient by singing the song;

b) that she was not laughing at resident’s passing away but simply the story being told by Ms Govender in relation to the scenario involving one of their colleagues; and

c) that she was on a break and did not need to respond to the buzzers. Further, Ms Tavassoli claims that she always responds to the buzzers – a point that she raised with Mr Brice and Ms Lyman during the disciplinary meeting.

[57] Bupa raised the issue that Ms Tavassoli’s conduct has breached the company’s code of ethics which says that employees must act with honesty, within personal and professional standards (ie treat people courteously, equitably and with fairness, respect and dignity) and observe the resident’s confidentiality.

[58] Bupa claims that Ms Tavassoli is not a witness of credit on the basis of her conflicting evidence in the proceedings. Bupa assert that Ms Tavassoli has conveniently adjusted her evidence from her original statement to her second statement in order to satisfy the video footage.

[59] Ms Tavassoli submits that prior to her submitting her first statement, Bupa had not provided her with any specific allegations in writing and had refused to show her the video recording. As a result, Ms Tavassoli claims that she answered the questions in a general manner and to the best of her ability.

Consideration

s.387(a) – valid reason

[60] The definition of ‘valid reason’ is drawn from the judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 18;

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.”

[61] In Parmalat Food Products Pty Ltd v Wililo 19, a Full Bench said:

“[24]…The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair…”

[62] I am grateful for the transcript produced by both parties of the video footage. In addition, I have viewed the footage on more than 20 occasions since the hearing.

[63] I do not believe that Ms Tavassoli was acting in a condescending manner when she sang “I can do anything better than you.” This line comes from a song “Anything You Can Do” which is from the Broadway musical “Annie Get Your Gun”. According to Wikipedia, its most memorable lines are; “Anything you can do I can do better, I can do anything better than you”. In many respects the song could have been used as a theme song for gender equality. It is sung in the context of the female performer being able to do anything better than her male counterpart. I accept that Mr Brice and Ms Lyman may not have ever heard of the song or seen the movie but if the resident had any recollection of the song then, in my view, they would have taken confidence out of the line sung by Ms Tavassoli rather than umbrage. The song was not meant to be condescending, nor would it have been taken that way by the resident. I find that Ms Tavassoli was not being disrespectful to the resident when singing the song.

[64] In relation to the incident in the lunch room, I am not convinced that Ms Tavassoli laughed, as alleged by Bupa. Ms Tavassoli certainly smiles for one second at the conclusion of Ms Govender’s story when Ms Govender laughs raucously, however, it is not an uncommon human trait for a person to laugh or smile when others around you are laughing. I know that I have done this often. I also note that Ms Tavassoli laughed after making a comment about how she panicked by screaming for help rather than pressing the emergency buzzer when a resident had momentarily slipped into an unconscious state. I accept Ms Tavassoli’s evidence that she would never laugh at a resident passing away and that such an occurrence typically saddens her. Ms Tavassoli testified that she regularly attends the funerals of residents. I find that Ms Tavassoli did not laugh at the death of two residents in the video.

[65] Nevertheless, I do not believe that Ms Govender was laughing at the death of the two residents but at her colleague, Ms Newpane. Ms Govender had convinced Ms Newpane to take the shift as a favour to Ms Govender. The shift was obviously a difficult and unusual shift. To suggest otherwise, in my view, takes the conversation out of context.

[66] Ms Tavassoli agreed that the practice of employees not attending to residents buzzers is a serious issue. In so many ways, the buzzer is the only form of communication between the resident and their carer. Ignoring resident’s buzzers is not just a neglect of duty issue for Bupa but also a breach of trust with the resident. Ms Tavassoli claims that she was on her second break for the day and that Bupa policy was that employees could have their break without interruption.

[67] Bupa were unable to provide any evidence to counter Ms Tavassoli’s testimony. I find it surprising that there is not a log kept of when employees have their breaks during their shifts. Such information would be beneficial in assessing workload efficiencies and response times. Alternatively, Bupa could have provided evidence from another employee who may have enjoyed their break either before or after Ms Tavassoli on that day. Without any evidence to the contrary, I am prepared to accept and find, on the balance of probabilities, that Ms Tavassoli was on her second break for the day and therefore not required to respond to the resident’s buzzers.

[68] As a result of my three findings above, Bupa did not have a valid reason to terminate Ms Tavassoli. I have taken this into account.

s.387(b) whether the person was notified of that reason

[69] Ms Tavassoli was read the allegations by Mr Brice at the disciplinary meeting. For a reason best known to itself, Bupa did not provide Ms Tavassoli with these issues in writing.

s.387(c) whether the person was given an opportunity to respond

[70] Ms Tavassoli was not given the allegations against her in writing until late February 2017. As such, Ms Tavassoli was not afforded a proper opportunity to respond to the allegations. This deficiency was amplified due to her language difficulties.

s.387(d) any unreasonable refusal by the employer to allow the person to have a support person present

[71] Bupa encouraged Ms Tavassoli to bring a support person to the formal investigation on 21 February 2017.

s.387(e) if the dismissal related to unsatisfactory performance

[72] Ms Tavassoli has a clean employment record. I am not aware of any issues unsatisfactory performance in the past.

s.387(f) size of employer

[73] Bupa is a large employer in the health and aged care industries. The inappropriate processes that were followed in this matter misrepresent the normal behaviour of Bupa and an organisation of its size.

s.387(g) dedicated human resource management

[74] Bupa has a dedicated and well resourced HR team. However, the procedures that they followed in relation to Ms Tavassoli’s disciplinary process were unprofessional, discourteous and unfair. Mr Brice claims that Bupa’s HR department told him to escort Ms Tavassoli from the premises and advise her to wait outside for 2 hours. Mr Brice claims that Bupa’s HR department advised him not to show Ms Tavassoli the video footage that was the subject of the accusations and investigation. This advice was poor and wrong. I struggle to see how the principles of procedural fairness can be satisfied by the actions of Bupa. Employees have a right to know the case that they have to answer. Bupa had an obligation to show Ms Tavassoli the video footage, particularly when it forms the sole foundation of the allegations. Simply making generalised accusations when specific information was available is a form of entrapment. The decision to terminate an employee should not be based on a memory test but rather the employee’s considered response to specific accusations. The conflict in Ms Tavassoli’s evidence can be traced back to the decision by Bupa to not show Ms Tavassoli the video recording.

s.387(h) any other matters

[75] Mr McArdle raised issues surrounding the secret video recording of Ms Tavassoli by Mr Ranjit and the possible breach of the Video Surveillance Act.

[76] I share Mr McArdle’s concerns. I regard the actions of Mr Ranjit as a blatant breach of Ms Tavassoli’s privacy. However, the legality or otherwise of Mr Ranjit’s actions is not within the jurisdiction of the FWC. At the commencement of these proceedings, I invited Mr McArdle to make a submission as to whether I should accept the video recording into evidence. Mr McArdle was of the view that the recording supported Ms Tavassoli’s case and supported the recording being viewed during the proceedings. To raise the legality of the video at the conclusion of the proceedings is a classic case of “closing the gate after the horse has bolted”. I have taken this into account.

[77] I concur with the comments of Deputy President Gostencnik in Simpson. Mr Brice should have accepted Ms Tavassoli’s attempt to rescind her resignation. Based on her emotional state and language deficiency, I regard the timeframe from the time of her resignation late in the afternoon of 16 November 2016, incorporating the correspondence from Bupa accepting her resignation on 17 November to the morning of 18 November 2016 to fall within the limits of a reasonable period for an employee wth poor English skills and in a highly emotional state. I find that by not accepting Ms Tavassoli’s attempt to rescind her resignation, Bupa acted in an unreasonable manner.

Conclusion

[78] I have taken into account all of the submissions and evidence that has been submitted by the parties.

[79] I endorse the obiter in Parmalat. Without a valid reason to terminate Ms Tavassoli, her termination is unfair. Coupled with the lack of procedural fairness afforded to Ms Tavassoli, I find that Ms Tavassoli’s dismissal was harsh and unjust.

Remedy

[80] I have taken into account all of the parties submissions in relation to remedy.

[81] The relevant sections of the Act in relation to an appropriate remedy for a successful unfair dismissal application are:

“Section 390

When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Section 391

Remedy--reinstatement etc.

Reinstatement

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person's employment;

(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

Section 392

Remedy-compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period--the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

Submissions

[82] Ms Tavassoli seeks reinstatement. As mentioned previously, Ms Tavassoli is 55 years of age and has been unsuccessful in finding alternate employment to fill the void left by her termination at Bupa. Ms Tavassoli has maintained her alternate part time role. I have taken note of the evidence of Ms Lyman where she said that if Ms Tavassoli was found to have been unfairly dismissed that there would be no reason why Ms Tavassoli could not return to work at Bupa Mosman. 20

[83] Bupa submitted that the FWC should not consider the option of reinstatement on the basis that Bupa has lost trust and confidence in Ms Tavassoli. Further, it was irrelevant that Mr Brice no longer works for Bupa on the basis that the lost trust and confidence was at a corporate level rather than an individual manager perspective. In addressing the issue of compensation, Bupa submitted that any amount should be minimal taking into account the lack of effort on behalf of Ms Tavassoli to mitigate her loss and the extent of the misconduct which had occurred.

Precedent

[84] In Holcim Australia v Serafina it was held that the Commission must determine the appropriateness of reinstatement before considering any other remedy.

[85] In Perkins v Grace Worldwide (Aust) Pty Ltd 21, the Full Court of the Industrial Court said:

“... we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the court were to adopt to a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits.”

[86] In Nguyen v Vietnamese Community in Australia 22 the Full Bench held:

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

Conclusion

[87] I agree with the views of Ms Lyman that there is no reason why Ms Tavassoli could not be reintegrated back into the workforce at Bupa Mosman.

[88] Having found that there was no valid reason for Ms Tavassoli to be terminated and that her dismissal was harsh and unfair, I adopt the obiter in Perkins. I note that any embarrassment for a manger that may normally be present when an employee is reinstated, does not exist in this case as Mr Brice is no longer employed by Bupa.

[89] I cannot find any reason why the employment relationship between Bupa and Ms Tavassoli cannot be restored. From the references that were provided, Ms Tavassoli is clearly a dedicated worker who has an excellent rapport with the residents, their families and her fellow employees. I accept the argument that Ms Tavassoli may find it difficult to find alternative employment due to her age and language deficiency. Ms Tavassoli has been unfairly dismissed and is entitled to the primary remedy under the Act.

[90] I order Ms Tavassoli be reinstated as an AIN within 7 days of this decision to her former position at Bupa’s Mosman facility, with the same hours and same duties.

[91] In accordance with section 391(2) of the Act, I order that Ms Tavassoli maintain her continuity of employment with Bupa.

[92] I have taken into account that Ms Tavassoli has maintained her existing part time job but has not gained any other supplementary employment. In accordance with section 391(3) and (4) of the Act, I order that Bupa pay Ms Tavassoli her base pay, excluding any weekend penalties, for the period 16 November 2016 – 18 July 2017.

[93] I so Order.

COMMISSIONER

 1   Exhibit B3 – Witness Statement of Daniel Brice at 29-30

 2   Exhibit T1 – Witness Statement of Shahin Tavassoli

 3   PR973462

 4   (1996) 67 IRA 154 AT 160-1

 5   [2013] FWCFB 5279

 6   Mohazab v Dick Smith Electronics Pty Ltd 62 IR 200 at 205

 7   [2010] FWA 6857

 8   [2013] FWC 5110

 9  See Gunnedah Shire Council v Grout (1995) 134 ALR 156 at 166-167

 10   Transcript 28 March 2017 at 2579

 11   Transcript 28 March 2017 at 2128

 12   Transcript 28 March 2017 at 2589

 13   Exhibit B3 Annexure ML-3

 14   Transcript 28 March 2017 at 2596

 15  Transcript 28 March 2017 at 2265-2273

 16   Nohra

 17   (1995) 185 CLR 410

 18   (1995) 62 IR 371

 19   [2011] FWAFB 1166

 20   Transcript 27 March 2017 at 2631

 21   [1997] IRCA 15; 72 IR 186

 22   [2014] FWCFB 7198

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