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The recent Fair Work Commission decision in Tavassoli v Bupa Aged Care Australia Pty Ltd illustrates the importance of conducting workplace investigations in a procedurally fair way including to give full particulars and evidence of the allegations.

The Case

In essence:

  • an employee was a refugee from Iran who worked as a nursing home employee at the employer’s Mosman aged care facility
  • during that employment a colleague made covert video recordings of the employee which showed her disregarding resident calls, teasing residents, and laughing in response to reports about residents’ deaths
  • the recordings were provided to the facility’s General Manager and the employee was suspended from duties the following day
  • the employee was informed that her conduct was the subject of an investigation, but was otherwise not given advanced notice of the specific allegations made against her
  • at an interview the General Manager put the allegations to the employee, but did not show the employee the video recordings
  • at the end of the interview the employee (who had limited command of English), submitted her immediate resignation which was accepted
  • two days later the employee contacted the employer and requested to have her resignation withdrawn, however this request was refused

The Decision

The Fair Work Commission held:

  • the employer’s decision not to show the employee the video recordings of her conduct was “poor and wrong”, stating that Bupa “had an obligation to show the employee the video footage, particularly when it formed the sole foundation of the allegations”
  • the covert recordings of the employee’s conduct constituted a “blatant breach of privacy” and a potential breach of the Workplace Surveillance Act
  • the employer conducted the workplace investigation and interview in a procedurally unfair way
  • the employee was not given advanced notice of the allegations against her
  • the employer failed to have sufficient regard to the employee’s limited command of English including when considering whether or not to accept the employee’s resignation
  • the employer’s refusal to agree to the employee’s request to withdraw her resignation was unfair and evidenced an intention that the employer was going to dismiss the employee anyway prior to completing an investigation

The Sting

The employer’s failure to provide the employee with the video evidence of her alleged misconduct, together with the employer’s knowledge of the employee’s limited command of English, rendered the refusal to accept the withdrawal of the employee’s resignation a constructive dismissal, and procedurally unfair.

The Liability

The Fair Work Commission ordered:

  • the employee be reinstated to her previous position, on the basis that the General Manager was no longer employed at the facility
  • the employee receive back pay for the period she was unemployed between the dismissal and subsequent reinstatement (approximately 8 months)

Going Forward

Employers must ensure that all workplace investigations are conducted in a procedurally fair way, including by ensuring that all specific allegations and evidence are put to the employee in a way that allows the employee a proper opportunity to respond.

Failing to afford an employee procedural fairness during a workplace investigation may render any subsequent dismissal unfair.

More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635 7966 to speak with one of our employment lawyers.