TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as registered nurse at aged care facility – applicant summarily dismissed for serious misconduct – respondent relied on videos evidence of three separate incidents taken by colleague in support of decision to terminate employment – videos taken without applicant’s knowledge or approval – first incident was of applicant laying on residents bed wearing dark glasses – applicant submitted she was resting eyes subsequent to recent eye surgery – Commission accepted this as applicant only at work that day to save respondent cost of employing a casual – second incident was in a resident’s dining room where applicant stated to resident you ‘can’t do anything – you can’t even walk´ – whilst Commission accepted sometimes necessary to speak in forceful tone to residents with dementia, Commission cannot condone words – words considered inappropriate, offensive, disrespectful and demeaning – respondent further submitted applicant was laughing at death of two residents – respondent claimed inappropriate to go into specific details of resident’s death – Commission stated graphic details not appropriate conversation in residents’ dining room – such explanation breached confidentiality of resident – third incident involved allegedly ignoring buzzers of residents while in residents’ TV room drinking tea or coffee – respondent claimed applicant was neglecting duties – applicant submitted she was on break – Commission accepted this – applicant stood down with full pay while investigation carried out – applicant submitted not guilty of alleged misconduct – applicant submitted recordings were in breach of her privacy and respondent knew they were obtained without consent and therefore could not rely upon them – applicant submitted denied procedural fairness – respondent submitted had valid reason to terminate applicant’s employment based on allegations of serious misconduct – respondent submitted gave applicant opportunity to respond to the allegations – Commission found trust placed in employees of aged care industry not open to abuse or neglect – Commission took into account applicant was entitled to be shown video footage taken by colleague – gave inconsistency between first statement and oral evidence little weight which alleviated procedural fairness exponentially – considered factors in Parmalat – found applicant not unfairly dismissed. Govender v Bupa Aged Care Mosman
