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Employment Law – Bupa Criticised for Disciplinary Process

Employment Law – Background 

The Fair Work Commission has found that a vulnerable aged care worker was unfairly dismissed due to her employer, Bupa Aged Care, acted unconscionably. Bupa were criticized for their “unprofessional, discourteous and unfair” disciplinary process.

Employment Law – Facts 

In essence:

  • Shahin Tavassoli, a refugee from Iran with limited English skills, was employed by Bupa
  • On the weekend of 13-14 November 2016, a colleague secretly recorded her on his mobile singing “I can do anything better than you” following a heated exchange between a resident and a nurse and also allegedly laughing and joking at the death of two residents
  • A second video, recorded the following day, allegedly captured her sitting in the TV room ignoring resident’s buzzers
  • These videos were shown to David Brice, acting general manager of Bupa Mosman a Miriam Lyman, care manger
  • On 16 November, Tavassoli attended work training. However, at 2pm Brice escorted her from the premises, only telling her that there had been serious allegations made against her and he was waiting for more documentation in a few hours.
  • Continue reading…

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Employment Law – Dismissal for Drug Test Refusal Invalid

Employment Law – Background

The Fair Work Commission has held that a company who dismissed an employee for refusing to provide a blood sample for a drug test had no valid reason to do so.

Employment Law – Facts

In essence:

  • Green was employed by Lincon Hire & Sales as a work platform operator
  • On 1 March 2017, Lincon received anonymous information that the employee and others were using drugs
  • Lincon’s drug and alcohol policy allows random drug testing, and asserts that refusal to partake will be considered a positive test, allowing for potential disciplinary action, including dismissal
  • On 6 March 2017 all employees underwent a drug test. Green provided a negative sample. However, Lincon received further anonymous messages claiming that Green and others had used substitute samples
  • On 7 March 2017, Green was informed he had to undergo a blood test because the previous tests had been “fudged”
  • Employees, including Green, felt that a blood test was an invasion of privacy and Green offered to do a urine test instead
  • Continue reading…

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Employment Law – Employee Compensated After Award Obligations Ignored

Employment Law – Background

The Fair Work Commission has compensated an employee who was unfairly dismissed because her employer failed to comply with their consultation obligations under the relevant award.

Employment Law – Facts

In essence:

  • Carer’s that Care (CTC) terminated Ms Morris’ employment because it could not afford to pay her full-time wage after losing a significant number of clients
  • Ms Morris argued that she hadn’t received any warnings but was only told that CTC was shutting down and staff would be made redundant
  • She also argued that she was not provided with the opportunity to respond, because the managing director refused to have any discussions with Morris
  • Morris lodged an application for unfair dismissal

Employment Law – The Relevant Law

  • Section 389 of the Fair Work Act (‘The Act’) states that a genuine redundancy occurs when an employee’s position is no longer required and the employer has complied with any obligations under the modern award or enterprise agreement
  • Continue reading…

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Employment Law – Court Dismisses Employee’s Misleading Conduct Claim

Employment Law – Background

The Federal Court has rejected a high earning employee’s claim that her employer engaged in misleading and deceptive conduct when the media company told her that her new role would be “long-term”.

Employment Law – Facts

In essence:

  • Nunn Media dismissed their head of strategy during her probationary period, alleging she was often late and the quality of her work did not meet their standards
  • However, the employee claimed that Nunn Media had engaged in misleading and deceptive conduct because when recruiting her they said if she was hired, it would be a “long-term” commitment
  • She claimed that she was dismissed because she made a complaint about a director’s work performance and took personal leave for illness
  • To support her claim she relied on an email from the managing director to another employee which said “WTF (what the f***) in response to the employee informing Nunn Media that she required time off to see a doctor.
  • Continue reading…

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Employment Law – No Compensation for Employee who fibbed on CV

Employment Law – Background

The Fair Work Commission has held that a company’s failure to provide notice to a finance manager rendered her termination unfair. However in an interesting turn of events, declined to award compensation because she “deliberately deceived” them of her qualifications.

 

Employment Law – Facts

In essence:

  • In her application for an accountancy role at Spectrum Community Focus Limited, the manager claimed that her qualifications included “ASA-CPA Australia” (an associate member, who had six years to complete training to become a full member of the professional body for accountants) and had an MBA
  • She later became the finance manager, reporting directly to the CEO and board of directors and responsible for preparing financial reports
  • In November in the lead up to her dismissal, she made several blunders including failing to file the company’s return to the Australian Charities and Not-for-profits Commission (ACNC) by the required time frame. She also made several mistakes with the 2015 reports, including not reporting an apparent $600,000 loss to the managing director
  • Continue reading…

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Fair Work Commission – Settlement Prevents Dismissal Claim

The Fair Work Commission has thrown out an unfair dismissal application because the employee had previously agreed to a settlement with his employer.

Facts

In essence:

  • In November 2016, Mr Singh was dismissed from his team leader role at Sydney Trains after an investigation into two safety incidents in August 2015
  • Singh was dismissed for failure to follow safety policies, procedures and guidelines whilst working in a safety critical location, causing significant risk of harm to himself, his team and the public
  • He applied for unfair dismissal under s 394 of the Fair Work Act
  • On 13 February, Singh’s solicitor wrote to Sydney Trains solicitor proposing terms of settlement, including that Singh be re-employed in an administrative role
  • Sydney Trains replied adding various qualifications regarding medical assessments and the requirement that a deed of release be signed
  • The deed of release was given to Singh and he agreed to settle the application in principle based on the terms in the draft deed.
  • Continue reading…

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Employment Law – Bullying Allegations Reasonable Management Action

Employment Law – Background

The Fair Work Commission has thrown out an anti-bullying claim brought by an aged care employee as her employer’s conduct was considered to be reasonable management action in response to her inappropriate conduct.

Employment Law – Facts

In essence:

  • the employee alleged she had been frequently bullied by her manager and supervisor since 2014
  • amongst various bullying allegations, she alleged that her manager screamed on many occasions, chased and ambushed her, spoken about her in highly derogatory terms and refused to grant leave when her daughter was having a medical procedure
  • the employee also claimed her supervisor also bullied through his handling of investigations and allegations made by and about her making her feel “scared”
  • both the supervisor and manager denied the allegations and claimed that the employee had frequently been aggressive to the manager including yelling personal insults and pointing her finger in the manager’s face, following her into her office and blocking the exit
  • Continue reading…

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Fair Work Commission: Support Person in Disciplinary Meetings

Employment Law – Background

The Fair Work Commission has ruled that a HR manager should not have allowed a company a manager to be put forward as a ‘support person’ for an employee who was under threat of dismissal.

Employment Law – Facts

In essence:

  • the employee, a retail supervisor at RACV’s Cape Schanck Resort, sought to have the company’s manager present as her ‘support person’ at a disciplinary meeting
  • however, the company opposed this as the selected ‘support person’ worked directly with the employee

Employment Law – Fair Work Commission Decision:

The Fair Work Commission:

  • determined that the resort manager “should not have allowed his name to be put forward as a potential support person” and HR also shouldn’t have allowed it to occur
  • held that the resort manager could “by no means be regarded as someone who would give [the retail supervisor] ‘support’ in any of the capacities implied by that word; whether as an advisor, counsellor or representative”
  • Continue reading…