1
Fair Work Act
2009
s.394 - Application for unfair dismissal remedy
Ms Shahin Tavassoli
v
Bupa Aged Care Mosman
(U2016/14357)
COMMISSIONER RIORDAN SYDNEY, 18 JULY 2017
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.
[2017] FWC 3200 [Note: An appeal pursuant to s.604 (C2017/4000) was
lodged against this decision - refer to Full Bench decision dated 10 October
2017 [[2017] FWCFB 3941] and Decision dated 9 March 2018 [2018]
FWC 1074] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2018FWC1074.htm
http://www.fwc.gov.au/documents/decisionssigned/html/2018FWC1074.htm
http://www.fwc.gov.au/documents/decisionssigned/html/2017FWCFB3941.htm
[2017] FWC 3200
2
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:
[2017] FWC 3200
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“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:
[2017] FWC 3200
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“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”.
[2017] FWC 3200
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[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 Ltd3 (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
[2017] FWC 3200
6
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 Ltd5, 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
[2017] FWC 3200
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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 Ltd7, 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)
[2017] FWC 3200
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[34] In Kelly Simpson v Mohammed Shahid Akram t/a Mad about Price8, 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
circumstances9. 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 meeting10. 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 language11 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 resident14.
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
[2017] FWC 3200
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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.
[2017] FWC 3200
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[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 employer16.
[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
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(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.
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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
Airlines17 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. ...
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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
[2017] FWC 3200
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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 Ltd18;
“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 Wililo19, 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
[2017] FWC 3200
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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.
[2017] FWC 3200
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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
[2017] FWC 3200
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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
[2017] FWC 3200
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(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:
[2017] FWC 3200
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(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
[2017] FWC 3200
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(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.
[2017] FWC 3200
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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 Ltd21, 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 Australia22 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.
[2017] FWC 3200
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[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
Printed by authority of the Commonwealth Government Printer
Price code C, PR593680
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
9See 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
15Transcript 28 March 2017 at 2265-2273
16 Nohra
17 (1995) 185 CLR 410
18 (1995) 62 IR 371
[2017] FWC 3200
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19 [2011] FWAFB 1166
20 Transcript 27 March 2017 at 2631
21 [1997] IRCA 15; 72 IR 186
22 [2014] FWCFB 7198
