Covert surveillance of misconduct leads to reinstatement of employee
In a decision handed down on 18 July 2017, the Fair Work Commission ordered the reinstatement of a health care employee who had been dismissed for serious misconduct involving neglect of an aged resident under her care. A key element for the decision of the FWC was the employer’s use of video footage of a number of incidents secretly filmed by another employee to justify its constructive dismissal.
Facts
Ms Tavassoli was a nurse at BUPA Aged Care Mosman, employed since 2003, who resigned under contentious circumstances later found to constitute constructive dismissal in November 2016. Her dismissal arose from a number of incidents she was involved in with aged residents, which had been covertly filmed by a work colleague. These incidents included:
Ignoring residents’ requests for assistance while taking a tea break;
Making sarcastic comments to a work colleague about being able to be rostered off a shift where a number of residents passed away;
Mocking residents; and
Singing songs making fun of residents.
Upon being shown footage taken on a mobile phone of the incidents, the facility manager removed Ms Tavassoli from a training session she was attending the next morning and had her meet with him off the premises. Thinking she was about to be admonished about a completely different matter, Ms Tavassoli prepared a resignation letter providing the required 4 weeks’ notice. However, her manager then outlined the allegations based exclusively on the mobile phone footage provided to him and sought the removal of the notice period, making the employee’s resignation effective immediately. When the manager refused Ms Tavassoli’s request to withdraw her amended resignation two days later, she made her claim for reinstatement to the FWC.
Consideration and finding
Commissioner Riordan of the FWC agreed with the claim Ms Tavassoli had been constructively dismissed and then went on to consider her application for reinstatement. On this issue, he was critical of the employer’s:
Sole reliance on the covertly filmed footage from the work colleague without making other enquiries or commencing an impartial investigation;
Denial of procedural fairness by failing to show the secretly recorded evidence to Ms Tavassoli to allow her to make an adequate response to the allegations; and
Refusal to reconsider Ms Tavassoli’s request to withdraw her resignation letter.
Accordingly, the FWC ordered Bupa to reinstate Ms Tavassoli’s employment, with payment of a considerable amount of backpay.
Comments on the decision
With many employer’s making use of surveillance evidence in disciplinary issues involving staff, the Commission’s consideration of this aspect of the case is of interest. While it is the Workplace Surveillance Act 2005 (NSW) and not the repealed Workplace Video Surveillance Act (1998) (as reported in the case) that applies to NSW workplaces, both make it an offence to covertly film staff in the workplace without proper authority. While not argued by the Applicant’s solicitor, any improperly obtained covert evidence could be deemed illegal and accordingly rejected by the Commission.
Tips for employers
Bupa may have been able to overcome its issues with the covertly obtained video footage if it had conducted an investigation to obtain admissible evidence of the observations of staff, including the colleague who had recorded the incidents. Such direct evidence would have greatly reduced or even eliminated the need for the potentially illegally obtained covert recordings to be used to support its termination of Ms Tavassoli.
Another tip is to ensure the necessary written notice has been provided to all staff, as required by the NSW Workplace Surveillance Act, advising that video and other surveillance is being conducted at their workplace.
Tavassoli v Bupa Aged Care Mosman [2017] FWC 3200
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Graham Evans is the Managing Partner of O'Connell The Employment Law Specialists, a Sydney-based employment law firm. He has over 20 years' of experience in assisting employers in dealing with complex issues within their workplace.
EMAIL: graham@oconnellgroup.com.au
