Ms Shirley Govender v Bupa Aged Care Mosman

[2017] FWC 3559

[2017] FWC 3559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Shirley Govender
v
Bupa Aged Care Mosman
(U2016/14818)

COMMISSIONER RIORDAN SYDNEY, 18 JULY 2017

Application for an unfair dismissal remedy.

[1] Ms Shirley Govender was employed by Bupa Aged Care Australia (Bupa), or its predecessors, at its Mosman aged care home, in September 2010 as a Registered Nurse. Ms Govender was summarily dismissed on 24 November 2016 for serious misconduct, by, allegedly, wilfully and deliberately behaving in a manner which Bupa considered was inconsistent with Ms Govender’s contract of employment. Ms Govender claims that she was unfairly dismissed.

[2] 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 represent Ms Govender and for Mr Jamie Darams, of Counsel to represent Bupa.

[3] This matter was heard concurrently with U2016/14818. Whilst the evidence is similar, the issues to be determined were not the same. For the sake of clarity, separate decisions will be issued.

[4] I previously advised the parties that I have had some experience of dealing with a person with early onset dementia.

Issues

[5] The two most important issues in this case are:

a) whether Bupa had a valid reason in terminating Ms Govender’s employment due to her alleged conduct; and

b) if Ms Govender did act in this manner, whether Bupa’s decision to summarily dismiss Ms Govender was a harsh, unjust or unreasonable outcome.

Background

[6] Ms Govender is a Registered Nurse. She speaks with a broad accent, naturally talks loudly and is partially deaf.

[7] Aged care workers are rostered to work on a 24 x 7 basis at Bupa Mosman. Typically, two Registered Nurses and 4 Assistants in Nursing (AIN) are rostered for each shift.

[8] The primary source of evidence upon which Bupa relied to support its decision to terminate Ms Govender was a series of videos that were taken by her former work colleague, Mr Bishal Ranjit, without her knowledge or approval. Mr Ranjit, an Assistant in Nursing on Ms Govender’s shift, secretly recorded Ms Govender on three separate occasions, producing a video with audio on each occasion.

[9] The first video was taken on 29 October 2016 and shows Ms Govender laying on a resident’s bed wearing dark sunglasses. Bupa allege that Ms Govender was sleeping. Ms Govender testified that she was resting her eyes following recent eye surgery and the recent application of eye drops by one of her colleagues.

[10] The second video shows Ms Govender sitting at a table in the resident’s dining room. Ms Tavassoli (the Applicant in U2016/14357) and two residents are also at the table. Two female AIN’s are standing behind the two seated residents. Ms Govender was engaged in a short conversation with another resident when the following interaction occurred:

“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. 1

[11] Bupa submitted that Ms Govender was disrespectful and abrupt to the resident in both the manner and tone in which she spoke. Ms Govender claimed that she was not being disrespectful and that it was sometimes necessary to speak in a forceful tone to residents with dementia. Ms Govender’s claim was supported by qualified Bupa management representatives.

[12] After that resident moved away, Ms Govender continued her conversation with the remaining occupants at the table. Ms Govender totally dominated this conversation and made the following comments about another resident:

“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 the she goes to the other room and (inaudible) she was almost dead (both smiling towards cameras). And I said, hurry up why scream instead of pressing the emergency, and then I press the emergency.” 2

[13] Ms Govender laughed loudly at the conclusion of her story.

[14] Bupa claimed that Ms Govender was laughing at the death of the two residents. Ms Govender claimed that she was actually laughing at what happened to their colleague, Ms Newpane, when she worked the overtime shift.

[15] Ms Govender then continues the conversation and explained the following scenario:

“PN34 Shirley Govender – they don’t hit the emergency buzzer…. You know what? This week, we are going to have 4 deaths.

PN35 You know upstairs [patient name], you know she was frothing right? Frothing, frothing, frothing

PN36 And then I said, you know what? Let me go and feed her, and you know (inaudible) was in charge of feeding her but (inaudible) wasn’t there, I said, I would feed her, when I went, I put off (indistinct) all the froth coming out, you know and blue and everything.

PN37 I didn’t see the blue and then I wiped everything. I said, “Ooh, her toes looked funny”, I’ll just go leave the plate, you now, on the trolley and come back….

PN38 My goodness she was gone, (gasp!) Lucky the oxygen cylinder was there and there was no, you know, the mask?”

[16] Bupa claimed that Ms Govender breached resident confidentiality by explaining in specific detail the breathing difficulties that were being encountered by the resident. Ms Govender argued that she was explaining to her colleagues that she had saved the life of the resident by administering oxygen and highlighted the need to ensure that the appropriate equipment is at hand at all times to deal with emergencies.

[17] Bupa claimed that it was inappropriate for Ms Govender to go into specific details of the resident frothing at the mouth in front of the two residents sitting at the table on the basis that, whilst they have dementia and would not remember the conversation, the explicit descriptions may have caused them a degree of fear and trepidation about their own health and future.

[18] The third video was recorded on the following day. This video shows Ms Govender, Ms Tavassoli and Ms Newpane (the Registered Nurse from upstairs) sitting in the residents’ TV room drinking tea or coffee and allegedly ignoring the buzzers of residents.

[19] Bupa claim that by ignoring the buzzers, Ms Govender was neglecting her duties and therefore in breach of her contract of employment. Ms Govender denied this accusation in her disciplinary interview and in her first witness statement. After seeing the video footage, Ms Govender claimed to be on a break.

[20] Mr Brice, the Acting General Manager of Bupa Mosman, spoke to Ms Govender by telephone at approximately 2pm on 16 November 2016, advising her that she had been stood down on full pay whilst an investigation was carried out into a number of serious investigations. Mr Brice followed up this telephone call with an email at 4.56pm on the same day. One of the letters attached to this email, in part, said:

“16 November 2016

Dear Shirley,

Re: Suspension from work on full pay

Following our discussion earlier today I write to confirm that you are suspended from your position as Registered nurse (RN) at Bupa Aged Care Australia (BACA) Mosman on full pay, effective immediately, pending a full and thorough investigation into the following allegations against you:

• Serious and Wilful Misconduct:



• Specifically – Abuse and Neglect of a resident.



• Breach of BACA’s Professional and Personal Standards and Code of Ethics:



• Specifically – not treating residents courteously, equitably, fairly, respectfully and with dignity;



• Not providing a high level or service to residents;



• Not respecting resident privacy and maintaining confidentiality; and



• Not performing the duties associated with your position to the best of your ability.

It is alleged that on Saturday November 12^th you and an Assistant in Nursing engaged in an inappropriate conversation about the deaths of two (2) residents in front of two (2) residents. In this conversation you were reportedly laughing and belittling the resident’s illnesses prior to their deaths. It is alleged that when a resident became upset about the content of the conversation you spoke to the resident in an aggressive tone you allegedly told the resident she should ‘thank god’ that she was being looked after as the resident ‘cannot do anything.’

It has been further reported that on Saturday, November 12^th, you engaged in an inappropriate conversation about the deaths of two (2) residents in front of two (2) residents.

It has been further reported that you were found to be sleeping on a resident’s bed on your rostered shift.

Finally it has been reported that you and an AIN were in the television room drinking tea and coffee and watching television. It is alleged that four (4) patient buzzers were alarming at this time and were deliberately ignored by yourself and the AIN.” 3

[21] As requested, Ms Govender attended a meeting with Bupa management on 21 November 2016. Ms Govender had a support person at the meeting. During this meeting, Ms Linda Hudic (Bupa Regional Manager) read out each of the allegations and invited a response from Ms Govender. Relevantly, Ms Govender was not shown a copy of the video.

[22] Mr Brice claims that after considering all of the available evidence he decided to terminate Ms Govender. Ms Hudic advised Ms Govender of this decision on 24 November 2016. Mr Brice sent Ms Govender a written termination notice later that day which said, in part:

“….Your wilful and deliberate behaviour is inconsistent with the continuation of your contract of employment. Your actions are neglectful and abusive in nature and have caused a serious and imminent risk to the health and wellbeing of our residents and therefore in the circumstances your continued employment during a notice period would be unreasonable.” 4

Statutory Provisions

“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

(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.

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

[23] Ms Govender submitted that she was not guilty of the alleged misconduct. Therefore, Bupa did not have a valid reason to terminate her employment.

[24] Ms Govender stated that she did not give Mr Bishal Ranjit authority to record her at any time. Ms Govender argued that these recordings were a breach of her privacy and that, in accordance with the Surveillance Devices Act 2007, Bupa knew that they were obtained without her consent and therefore they could not rely upon them.

[25] Ms Govender submitted that she was not shown the video of her alleged indiscretions until after she had submitted her first witness statement. Ms Govender submitted that this act by Bupa denied her procedural fairness in that she was required to respond to general allegations rather than the specificity of what is shown in the video recordings. As a result, Ms Govender alleges, she was not given an appropriate opportunity to respond in accordance with section 387(c) of the Act.

[26] Bupa submitted that it did have a valid reason to terminate Ms Govender based on the allegations of serious misconduct and summarily dismissed her after conducting an investigation.

[27] Bupa argued that Ms Govender had breached the Bupa “Code of Ethics” which included obligations for each employee to:

• be respectful whilst working



• treat people courteously with respect, fairness and dignity



• act with honesty and integrity



• observe confidentiality in regard to any information that they obtain during their employment.

[28] Bupa submitted that it did give Ms Govender an opportunity to respond to the allegations at the meeting on 21 November 2016. Further, Bupa claimed that they took the responses of Ms Govender into consideration before making its decision.

Consideration

[29] I have taken into account all of the submissions and evidence that have been submitted by the parties. I now turn to consider whether Ms Govender’s dismissal was harsh, unjust or unreasonable.

[30] I am grateful to the efforts of both parties in transcribing the video footage. I have also watched the video on more than 20 occasions.

[31] The oft quoted joint judgement of McHugh and Gummow JJ, in Byrne v Australian Airlines 5 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. ...

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...”

[32] In Parmalat Food Products Pty Ltd v Wililo 6 a Full Bench of the FWC held:

“[24] We do not consider that the decision discloses a clear line of reasoning leading to the decision reached. 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. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open…”

s.387(a) – valid reason

[33] The definition of ‘valid reason’ is drawn from the judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 7;

“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.”

[34] In Walton v Mermaid Dry Cleaners Pty Ltd 8it was held that;

“…it is not the courts function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct…”

[35] In relation to the TV room incident, I accept the evidence of Ms Govender that she was on a break and was therefore not obligated to respond to resident’s buzzers. Bupa had the opportunity to bring evidence from the other RN on the shift to determine whether Ms Govender was on a break or simply malingering. I have taken this into account.

[36] I accept the evidence of Ms Govender that she was not sleeping on the residents’ bed but merely allowing her eye drops to settle. Ms Govender was only at work on that day at the request of Mr Brice in order to save Bupa the cost of employing a casual. Mr Brice’s memory of the lead up to this day was conveniently unreliable.

“PN2326

You accept and agree, don't you, that Ms Govender told you she had had eye surgery on a Thursday? I don't recall that.

PN2327

Do you accept and agree that Ms Govender told you she had had eye surgery? Yes.

PN2328

Do you accept and agree that Ms Govender told you she had to take regular eye drops as is routine in these matters? No.

PN2329

Do you accept and agree that she came to work the day after you rang her because she did the shift you requested? No, I don't recall.

PN2330

You don't recall? No.

PN2331

Do you accept that she agreed to do a shift at your request? She may have done. I don't recall. I couldn't

PN2332

Do you recall ringing her? No.

PN2333

You don't recall ringing her? No. We – no.

PN2334

You don't recall her telling you that she'd had an eye operation? Like I said, I knew – Shirley had said she'd had an eye operation/procedure. I couldn't tell you the dates and times and when the telephone calls were made.” 9

(my emphasis)

[37] I have taken this into account.

[38] In relation to the incidents in the resident’s dining room, I cannot condone the words that were said to the resident. To tell a resident that “you cannot even do anything – you can’t even walk” is a degrading comment on the physical capacity of a resident. This comment was disrespectful and inappropriate. I have taken this into account.

[39] I accept the evidence of Mr Brice that it is sometimes necessary to speak to a resident with dementia in an authoritive voice to make your views known or to allow the resident to comprehend the issue. As a result, I am prepared to accept that Ms Govender’s tone and manner when speaking to the resident was not disrespectful.

[40] Whilst I can understand how Bupa could construe that Ms Govender was laughing at the recent death of two residents on the overtime shift worked by Ms Newpane, I believe that such a conclusion can only be reached by taking the words out of context. Ms Govender was clearly talking about the lead up to, and performance of, the shift by Ms Newpane. The death of residents is an unfortunate yet regular occurrence in the aged care industry. For an employee to laugh at such a regular occurrence would automatically bring into question the mental state and capacity of that employee to work in this industry. I am satisfied that Ms Govender was laughing at the difficult shift encountered by her colleague that she had convinced her to take rather than the death of the residents. I have taken this into account.

[41] I am deeply concerned about the commentary that was provided by Ms Govender in relation to the resident that was frothing at the mouth and required oxygen. Ms Govender identified the patient to her colleagues (which was appropriate) but also to the two residents. Due to the volume of Ms Govender’s voice, the name and predicament of this resident would have been audible to anybody else in the dining room as well as the corridor. Ms Govender could not possibly have known who may have overheard this conversation, particularly on a weekend. I have taken this into account.

[42] I accept the argument that the graphic details that were described by Ms Govender in this scenario may have caused fear and trepidation for any resident who may have heard the conversation. I have taken this into account.

s.387(b) – whether the person was notified of that reason

[43] It is not in dispute that Ms Govender was notified of the reasons for her termination.

s.387(c) – whether the person was given an opportunity to respond

[44] In Gibson v Bosmac Pty Limited 10, Wilcox CJ said:

“Ordinarily, before being dismissed for reason related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.”

[45] Whilst it was not necessary for Bupa to provide Ms Govender with the name of any employee who was making a complaint against her, she was entitled to know the precise nature of the complaint. Ms Govender was entitled to be shown the video footage that had been taken by Mr Ranjit. After all, this was the only evidence that Mr Brice was relying upon in raising the allegations. I have taken this into account.

s.387(d) – any unreasonable refusal by the employer to allow the person to have a support person present

[46] Ms Govender had a support person with her at the disciplinary meeting.

s.387(e) – if the dismissal related to unsatisfactory performance

[47] Ms Govender had not previously been warned about any unsatisfactory performance.

s.387(f) – size of employer

[48] Bupa is a large employer with developed policies and procedures.

s.387(g) – dedicated human resource management

[49] Bupa has a dedicated, experienced and well resourced human resources team.

s.387(h) – any other matters

[50] Ms Govender raised the issue of Bupa using and keeping the video recordings, which were made without her consent by Mr Ranjit. I accept that there appears to be an argument that both Mr Ranjit and Bupa have breached the Surveillance Devices Act, 2007. Section 12 states:

“12 Possession of record of private conversation or activity

(1) A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part.”

[51] Had Mr McArdle pressed this point at the commencement of the proceedings I may have prohibited the recordings being admitted into evidence. This did not occur. I remain concerned about the breach of Ms Govender’s privacy by Mr Ranjit and Bupa. These actions cannot be condoned. However, any future action in relation to the suspected breach of the Surveillance Devices Act is outside of the jurisdiction of the Commission.

[52] Ms Govender was summarily dismissed by Bupa for serious misconduct.

[53] The Fair Work Regulation 1.07 defines serious misconduct to mean:

“Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.

[54] In Potter v Workcover Corporation 11it was held that:

“[55] In circumstances of summary dismissal the issue of whether the penalty imposed was proportionate to the conduct is a matter more appropriately considered in the context of s.170CG(3)(e) rather than s.170CG(3)(a). If summary dismissal was disproportionate to the misconduct that would support a conclusion that the termination was harsh, despite the existence of a "valid reason" for termination.”

[55] In cases where serious misconduct has been alleged the relevant principles were established in Briginshaw v Briginshaw 12:

“The tribunal must feel an actual persuasion of its occurrence or existence before it can be found… Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved… In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

Conclusion

[56] As a society, many are forced to entrust the latter part of our loved ones lives into the care and compassion of the providers and employees of the aged care industry. That trust is not open for abuse or neglect.

[57] The detailed and graphic description by Ms Govender of the faltering respiratory capacity of a resident was not an appropriate conversation in the resident’s dining room. This commentary by Ms Govender breached the confidentiality of that resident.

[58] The comment by Ms Govender in relation to the walking capacity of another resident was degrading and made to cause emotional hurt or at least a reaction. There can be no reasonable excuse for a senior employee to make a snide remark such as “you can’t even walk” in an attempt to gain some level of intellectual superiority over a resident suffering with dementia. It was behaviour that was not befitting a professional of Ms Govender’s experience, seniority and capacity.

[59] Ms Govender should have been shown the video of her alleged misdemeanours at the disciplinary meeting on 21 November 2016. A disciplinary process should not be conducted as some sort of memory test. Such a process is unfair. An employee is entitled to view the relevant information and evidence upon which the employer is relying to construct its allegations.

[60] I invited a submission from Mr McArdle at the start of the proceedings in relation to the admissibility of the video footage. Like Mr McArdle, I hold concerns about the capacity of Bupa to rely solely on this footage for their decision to dismiss Ms Govender. However, Mr McArdle did not take up this opportunity and encouraged the Commission to closely study the video on the basis that he believed that it would exonerate Ms Govender. To raise the provisions of the Surveillance Devices Act after the Commission was invited to view the video is an attempt to close the proverbial gate after the horse has bolted.

[61] The comments made by Ms Govender in the resident’s dining room (see PN57 and PN58) were inappropriate, offensive, disrespectful and demeaning. Such behaviour goes to the very heart of the employment contract between an employer and a senior medical practitioner. These comments led to an understandably loss of trust and confidence in Ms Govender’s capacity to work as a Registered Nurse for Bupa and provided a valid reason for Ms Govender’s summary dismissal.

[62] I remain concerned about the lack of procedural fairness afforded to Ms Govender at the disciplinary meeting due to Bupa’s decision not to show Ms Govender the video tape until after she had lodged her first witness statement. As a result, I have given any inconsistency between her first statement and her oral evidence and second statement very little weight. Therefore, the lack of procedural fairness afforded to Ms Govender dissipates exponentially.

[63] For the reasons mentioned and in accordance with the obiter in Parmalat, I find that Ms Govender was not unfairly dismissed. Her summary dismissal was not harsh, unjust or unreasonable.

[64] The application is dismissed.

[65] I so Order.

COMMISSIONER

 1   Transcript of filmed conversation relied upon PN13-PN22

 2   Ibid PN24-PN32

 3   Exhibit B2 – DB15

 4   Exhibit B2 – DB17

 5 (1995) 185 CLR 410

 6   [2011] FWCFB 1166

 7 (1995) 62 IR 371

 8 (1996) 142 ALR 681 at 685

 9   PN2326-PN2334 Transcript 28 March 2017

 10 (1995) 60 IR 1

 11 2004 133 IR 458 at 55

 12 (1938) HCA 34

Printed by authority of the Commonwealth Government Printer

<Price code C, PR594320>