Ms Shahin Tavassoli v Bupa Aged Care Mosman

In the Fair Work Commission, Ms Shahin Tavassoli applied against Bupa Aged Care Mosman for an unfair dismissal remedy. Ms Tavassoli was employed as a personal care assistant and was dismissed by Bupa following an incident in which she allegedly physically assaulted a resident. The primary issue before the Commission was whether Ms Tavassoli's dismissal was harsh, unjust or unreasonable, and therefore unfair. The Commission had to consider the proportionality of the dismissal in the context of the severity of the incident, the employer's response, and the employee's history of misconduct.

The Commission noted that while the incident was serious, it was not the first occasion on which Ms Tavassoli had been involved in an altercation with a resident. Ms Tavassoli had been previously warned about her conduct and had attended a mediation session following a previous incident. Despite this, the employer did not take any further disciplinary action until the incident in question. The Commission found that while the incident was serious and warranted a response, the dismissal was not proportionate to the nature of the incident and Ms Tavassoli's history of misconduct. The Commission considered that a lesser penalty, such as a suspension or demotion, may have been appropriate. The Commission concluded that the dismissal was unfair and ordered reinstatement and compensation for the loss of earnings.

The Fair Work Commission ordered that Ms Tavassoli be reinstated to her position with Bupa Aged Care Mosman, with back pay and compensation for the loss of earnings. The Commission also ordered Bupa to provide a written apology to Ms Tavassoli for the unfair dismissal. The decision highlights the importance of considering the totality of an employee's conduct and history when determining the appropriate disciplinary action, and the need for employers to have clear policies and procedures in place for dealing with serious incidents.