An aged care nurse claims she was unfairly dismissed after a colleague secretly filmed her being disrespectful to a resident, laughing at the deaths of two others, and ignoring residents’ buzzers.
The case has raised serious questions about the use of unauthorised covert surveillance in the workplace, and if employers should use it against employees in dismissal cases.
Shahin Tavassoli, a 55 year-old immigrant from Iran, was employed as an Assistant in Nursing at the Bupa aged care facility in Mosman in Sydney.
During a shift in November 2016, a colleague used his mobile phone without Ms Tavassoli’s knowledge or consent to film two incidents, and subsequently gave the videos to management.
In the first incident, in the course of a long conversation with a nurse and a resident, Ms Tavassoli sang a line from the song “Anything you can do I can do better” singing “I can do anything better than you.”
As the discussion progressed, the nurse began discussing a shift during which some residents had died, and it was alleged that Ms Tavassoli laughed at this.
In the second recorded incident, Ms Tavassoli was having a conversation in the tv room with other staff, when residents’ buzzers could be heard going off, but the employees allegedly did not respond and continued their conversation.
Employee suspended over ‘disgusting allegations’
Two days later, Bupa’s acting general manager David Brice escorted Ms Tavassoli out of the building telling her that “disgusting” allegations had been made about her.
He asked her to wait while a suspension letter was prepared.
Ms Tavassoli claims she was made to wait more than two hours, sitting on the footpath, in which time, she decided that she should resign.
At a meeting later that day, Mr Brice read out the suspension letter detailing the allegations, although importantly, the Commission found that he did not give Ms Tavassoli a copy.
At the meeting, Ms Tavassoli insisted on resigning, and the following day, Mr Brice sent Ms Tavassoli a letter confirming acceptance of her resignation.
The next day, Ms Tavassoli went to the home and attempted to rescind her resignation, but Mr Brice refused to accept it.
Fair Work Commission finds dismissal unfair
The Fair Work Commission found that Ms Tavassoli had been unfairly dismissed, and ordered that she be reinstated within seven days, and that she also be paid her lost wages as a result of the termination.
Bupa has since been given permission to appeal that decision, arguing Ms Tavassoli resigned, and was not dismissed.
Should employers be allowed to use secret video to dismiss an employee?
The case raises an interesting question – should employers be able to use covertly filmed video as evidence to dismiss an employee?
The Commission noted concerns about possible breaches of the Workplace Surveillance Act, but also confirmed that the legality of the covert surveillance is not within the Commission’s jurisdiction.
There is different legislation in each state covering workplace surveillance.
In New South Wales, the Workplace Surveillance Act generally prohibits the surveillance of employees at work, by their employer, except where employees have been given notice or where the employer has a covert surveillance authority, for example, correctional centres, courts and casinos.
Covert recording is ‘terrible’
Miles Heffernan, Director of Industrial Relations Claims, said employers and employees are starting down a dangerous road if they either record or use unauthorised covert surveillance.
“Unauthorised covert recording, in all its forms, is terrible,” he said.
“People should feel comfortable at work to interact with their colleagues without worrying that a “James Bond wanna-be” is hiding in a pot plant in the corner with their mobile phone recording.
“The moment the employer gets into the gutter by relying on secretly recorded stitch-ups, they undermine their own standing, and equally if an employee records covertly, they should expect to be accused of harming the relationship of trust in the workplace, and in certain states, they may even be committing a criminal offence,” Mr Heffernan said.
Ms Tavassoli’s case is due to be re-heard by Commissioner Ian Cambridge to determine whether she was dismissed or if she resigned.
If he finds that Ms Tavassoli was dismissed, she will be entitled to reinstatement and payment of her lost wages.
If you have been unfairly dismissed from employment, you may be entitled to compensation or reinstatement.
But you only have 21 days to make a claim, so don’t delay!
Please call our team at Industrial Relations Claims today on
1300 045 466