The Fair Work Commission (Commission) has emphasised the importance of the dignified treatment of aged care residents, finding that an aged care provider was entitled to terminate a nurse who disrespected a patient and revealed graphic details about a near-death experience of another resident, despite the shortcomings in the termination process followed by the employer.

Background

Ms Shirley Govender commenced employment at Bupa Aged Care Australia’s (Bupa) Mosman aged care home in 2010 as a Registered Nurse.

Following Bupa’s investigation into complaints about Ms Govender’s behaviour by a colleague, Ms Govender’s employment was terminated for serious misconduct.

Ms Govender’s colleague, Mr Bishal Ranjit, had secretly recorded Ms Govender’s behaviour on three occasions, and provided this footage to Bupa to support his allegations that she had been engaging in inappropriate conduct.

Presented with the footage, Bupa suspended Ms Govender on full pay while an investigation was carried out. As part of the investigation, Bupa wrote to Ms Govender and presented her with the allegations against her. She was then asked to respond to these in an interview of 21 November 2016. Significantly, Ms Govender was not shown the video footage that Bupa had received from Mr Ranjit.

Bupa’s management determined that the footage provided sufficient grounds for summary dismissal and advised Ms Govender of this decision three days later on 24 November 2016.

Ms Govender lodged an unfair dismissal application with the Commission.  

“I spy with my little eye” — The covert recordings made by another employee

The video recordings made by Mr Ranjit were critical evidence in both the Bupa investigation and the unfair dismissal hearing. While Ms Govender argued that these recordings were a breach of her privacy and the Surveillance Devices Act 2007 (NSW), she ultimately did not oppose them being introduced into evidence before the Commission.

The first video showed Ms Govender lying on a resident’s bed wearing dark sunglasses. Bupa’s investigation concluded that Ms Govender was sleeping on shift, despite Ms Govender’s insistence that she was simply resting her eyes following eye surgery, and that she had made her manager aware that she was going to need to do this.

The second video recorded a conversation between Ms Govender, another staff member, and a resident. In the conversation, Ms Govender told the resident that they could not “even do anything” and they could not “even walk”. Bupa found that Ms Govender was disrespectful and abrupt in the manner and tone in which she spoke to the resident. Ms Govender argued that she was merely being firm with the resident and that sometimes this is required with residents with dementia.

The second video also showed Ms Govender joking with colleagues about an overtime shift worked by another employee, in which two residents had died. Bupa alleged that Ms Govender was laughing at the death of the residents, whereas Ms Govender stated that she was merely laughing at the fact that her colleague worked overtime.

Finally, the second video recorded a further conversation where Ms Govender discussed a critical incident where a resident was “frothing at the mouth” and had turned blue. This conversation had occurred in a public area where it could be overheard by residents. Bupa found that Ms Govender breached the confidentiality of the resident, and that it was inappropriate for Ms Govender to be speaking about the incident in front of other residents due to the potential that it would make them fearful.

The third video showed Ms Govender and other employees sitting in the tea room drinking beverages while a number of residents’ alert buzzers were sounding. Bupa found that Ms Govender was ignoring that buzzers and neglecting her duties, despite Ms Govender arguing that she was on her break at the time of the video recording.

Deeply concerning conduct — Decision of the Commission

The video evidence was transcribed for the proceedings and the Commission viewed the material over 20 times. While the Commission did not agree with all of the findings that Bupa had reached during its investigation, the Commission did conclude that some of the alleged behaviour had occurred, and that this justified Ms Govender’s dismissal.

Specifically, the Commission found that Ms Govender’s conduct, where she told the resident that “you cannot even do anything – you can’t even walk”, was degrading, disrespectful, and inappropriate, even taking into account the evidence submitted by Ms Govender that it can be necessary to be firm with dementia patients. The Commission was also “deeply concerned” by Ms Govender’s comments regarding a resident frothing at the mouth and requiring oxygen, and found that identifying the patient to other residents was inappropriate and “could have caused fear and trepidation for any resident who may have heard the conversation”. 

However, the Commission was not satisfied that Ms Govender had been laughing at the deaths of residents during her colleague’s overtime shift, that she had ignored patients’ buzzers, or that she was sleeping on the job. The Commission accepted Ms Govender’s explanations of what had occurred in these incidents.

The Commission found that the process followed by Bupa had not been entirely fair, in that Bupa had failed to present the video evidence to Ms Govender. The Commission stated that Bupa should have shown Ms Govender the footage in order to allow her an opportunity to properly respond to the allegations before her and noted that a “disciplinary process should not be conducted as some sort of memory test”.

Nonetheless, in this case the Commission decided that the conduct was sufficiently serious in nature that dismissal was justified, despite the procedural deficiencies in Bupa’s investigation and termination process.

The Commission concluded by noting that many people must entrust the care of their elderly loved ones to aged care facilities, and that society expects that aged care residents will be treated with care and compassion. The Commission found that the behaviour of Ms Grovender was not befitting of a professional of her seniority, experience, and capacity

Comment

This case demonstrates that aged care providers, and those in the health industry, are entitled to expect their staff to respect patients, and that there is capacity for employers to take serious action in response to inappropriate behaviour.

However, the case also shows the importance of following a well-planned and fair procedure when conducting a disciplinary process which could lead to termination of employment. The existence of a valid reason for the termination is only one of the factors which the Commission must weigh up in determining whether a dismissal was unfair, with other considerations including whether the employee was given an opportunity to respond and the procedures followed in effecting the dismissal. In this case, the Commission expressed concern at the lack of procedural fairness granted to Ms Grovender in not showing her the video recordings, and this could have quite easily led to an unfavourable outcome for Bupa.