Cleaner unfair dismissal claim over ‘toe finger’ massage of teacher rejected

by | Jul 28, 2020 | News | 1 comment

By Zoe Moffatt

A cleaner has had her unfair dismissal claim rejected by Fair Work Australia after she was fired for giving a teacher a massage and “using her ‘toe finger’” on her back at a special needs school during work hours.

The Fair Work hearing before deputy president Peter Sams heard that part-time cleaner, Jennifer Fauni was “shocked and speechless” following her sacking from Bright Lightz Cleaning Service on February, 7 2020. She then lodged an unfair dismissal claim on February, 14.

The name of the school was not mentioned in the hearing.

Bright Lightz said Ms Fauni admitted to the claim of “squeezing the teacher’s back with her hands for two minutes and then using her ‘toe finger’ to presumably walk on her back, when she was laying on the floor.”

The company said Ms Fauni did not respond or provide information to justify her conduct when she was confronted.

In a statement to Fair Work, Vanessa Keating, the teacher at the centre of the claim, a special education support officer, said she asked Ms Fauni in mid-September, 2019 if she would “squeeze [her] shoulders as [she] was experiencing discomfort at the time.”

“This occurred only once and I was grateful that Jennifer was there to help,” Ms Keating said. This statement was not accepted by Fair Work because Ms Keating did not mention the details of her laying on the floor.

Ms Fauni’s statement to Fair Work differed to Bright Lightz’s account of what she told them about the incident.

She told Fair Work Ms Keating “asked her to squeeze her shoulder.” She said she “did so for about two minutes and ‘using [her] ‘toe finger’ [she] slowly squeezed her back for less than a second.”

Ms Fauni said her co-worker was present and witnessed the massage, but never gave evidence.

She said she reported the incident to her employer after work, however Fair Work said there was no evidence it was reported to management.

An email terminating Ms Fauni’s employment said her actions breached contract of services and has “very serious repercussions.” The email said Ms Fauni was being given two weeks notice that her employment would end on February, 21.

Following the email terminating Ms Fauni’s employment she said she went to her “employer’s home to get an explanation. She listened to their reasons, but did not agree with the dismissal.”

Ms Fauni said the “allegation was not acceptable to [her]” and she said she had not been told of any rule prohibiting her from massaging the teacher.

Deputy president Sams said Ms Fauni’s massage was a serious breach of the contract terms with the Northern Territory Department of Education and put the contract at risk.

He said Section 388(1) of the Code stated an employer can dismiss an employee without notice when the employee’s conduct is “sufficiently serious.”

Deputy president Sams said he accepted Ms Fauni believed she had helped Ms Keating, however she “should have politely refused, particularly as she was on shift and on the school’s premises.”

In the report deputy president Sams said he was “curious why Ms Keating had agreed to both a shoulder massage and a back massage, presumably with [Ms Fauni] ‘working’ her feet (toes) on Ms Keating’s back.”

The decision found that there was no unfair dismissal and Ms Faunis’ application was dismissed.

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