Constructive dismissal occurs when the conduct of an employer is so “harmful, adverse or unfriendly to” the contract of employment and the employer/employee relationship that the employee could not be expected to put up with it and offers a resignation. Constructive dismissal is therefore in reality a forced resignation.
A complicated case which helped to define constructive dismissal was that of Tavassoli v Bupa Aged Care Mosman.
Ms Tavassoli was employed by Bupa for approximately thirteen years as an Assistant in Nursing. She is a refugee from Iran with limited English language skills, a factor which proved important when the Fair Work Commission made its finding. On 16 November 2016, on what she thought was an ordinary day, at work, the Acting General Manager of the facility required the Ms Tavassoli step outside the premises for a “quick chat”.
She was escorted from the premises and told that there had been serious allegations made against her.
Ms Tavassoli panicked. She concluded that the allegation might involve an incident in which a resident offered her beer as a bribe for her services. She therefore had a colleague assist her to draft a letter of resignation, which she submitted. It included a notice clause of four weeks.
However, the allegations about her conduct were quite different. Bupa alleged that during 13–15 November 2016, Ms Tavassoli had:
- been singing at work “I can do anything better than you” after a heated exchange between a nurse and a resident;
- laughed and joked about the death of two residents; and
- sat in the TV room ignoring residents’ buzzers.
During the meeting with Bupa, the company refused to accept Ms Tavassoli’s resignation, and advised her she would need to participate in an investigation if she did not alter the notice provided on her resignation letter. It also said that available video footage would validate their claims. So, Ms Tavassoli forfeited the four weeks’ notice and Bupa accepted her resignation.
The disastrous effect of all this on a woman in Ms Tavassoli’s position can only be guessed at by most people, She subsequently filed an unfair dismissal application with the Fair Work Commission.
At the subsequent hearing, the FWC held the following:
- Bupa has a dedicated and well-resourced HR team – however, the procedures they followed in relation to Ms Tavassoli’s disciplinary process were unprofessional, discourteous and unfair;
- there was no valid reason for dismissal on the basis that Ms Tavassoli: had not been acting in a disrespectful manner when she sang;
- had not laughed at the deaths of residents; and
- was on a break when she had not responded to residents’ buzzers; and
- the termination was harsh, unjust and unreasonable.
Moreover, in concluding that Ms Tavassoli had suffered constructive dismissal
- Bupa should have ensured Ms Tavassoli understood what was required of her in an investigation;
- Bupa should have ensured Ms Tavassoli understood the effect of her resignation;
- Bupa had not provided Ms Tavassoli with a proper opportunity to respond to the allegations, namely:
- Ms Tavassoli was not provided with copies of the allegations and was not provided with time to consider them and to discuss them with her family;
- Ms Tavassoli was not provided with a copy of the video footage;
- Ms Tavassoli had not resigned of her own free will, given her poor English language skills and her emotional state;
- by suggesting an amendment to the worker’s resignation letter, (i.e., striking out the notice clause), Bupa had initiated the dismissal;
- Bupa had not acted appropriately in escorting Ms Tavassoli from the premises without providing a sufficient reason for such a process, leaving Ms Tavassoli to draw her own conclusions;
The key takeaway for employers is the first point made by the Commission: namely that : the procedures Bupa followed in relation to Ms Tavassoli’s disciplinary process were unprofessional, discourteous and unfair.
Point by point, employers should;
- provide employees with sufficient information to respond to the allegations;
- take extra care when employees are emotional and/or where English is not their first language;
- provide the employee with an opportunity to bring a support person to any meetings;
- not rely on video footage alone; and
- provide accused employees with an opportunity to respond.
If you require need advise or have any questions regarding constructive dismissal, please contact JFMLAW on 02 9331 0266.