Massage Therapist Denied Reinstatement After Workplace Assault

A Thai massage therapist who assaulted a colleague by smashing a glass over her head has failed to win her job back.

Amorn Bangpa, who worked for Vimana Thai Massage for over two years, filed a claim for unfair dismissal with the Fair Work Commission. However, her case was dismissed after she missed the statutory deadline, filing her claim 16 days late.

Ms. Bangpa argued that criminal proceedings stemming from the incident had consumed her time and caused significant stress, warranting an extension. She was arrested by NSW Police following the workplace altercation on June 14. Although she pleaded guilty to assault occasioning actual bodily harm and received a conditional release order without conviction in July, she maintained she was provoked.

Ms. Bangpa told the Commission that the employer's account of the incident omitted the events leading up to it. She stated that she had been unwell with acute bronchitis and was drinking warm water when a verbal dispute began with two co-workers. According to Ms. Bangpa, she attempted to de-escalate the situation, but one colleague allegedly jabbed at her face. Ms. Bangpa claimed she splashed water at the colleague in an attempt to make her back away, which then led to the colleague scratching, bruising, kicking, and attempting to slap her. Ms. Bangpa asserted that her reaction was instinctive and not intended to cause injury.

The other employee involved called the police and submitted a statement the following day, leading to criminal charges against Ms. Bangpa. This police statement claimed Ms. Bangpa picked up a glass and smashed it onto the other worker's head, causing pain, headache, blurred vision, and memory loss. The colleague, who was not charged, sustained a two-centimeter cut and swelling on her scalp.

Ms. Bangpa also claimed her employer had received incorrect information from the police suggesting she had a prior criminal record, which she alleges influenced the decision to terminate her employment. She stated she was not given an opportunity to respond or provide evidence to refute this alleged misinformation. Furthermore, she argued that her employer failed to conduct a formal disciplinary investigation and treated her unfairly, as the other employee involved in the altercation retained her job.

Vimana Thai Massage responded to the Fair Work Commission, stating that Ms. Bangpa was sacked for the assault, which they described as serious misconduct, and maintained that her dismissal was not based on any alleged criminal history.

At the hearing, Ms. Bangpa reiterated that the criminal case dominated her life post-dismissal and contributed to the late filing of her application, citing significant emotional distress from the court case and what she described as false accusations on social media.

Despite the 16-day delay in filing, Fair Work Commission Deputy President Alexandra Grayson ruled that there were no exceptional circumstances to justify an extension. Ms. Grayson noted that while Ms. Bangpa engaged in violent behavior, the context of that violence was unclear. She stated there was no medical evidence demonstrating ill effects on Ms. Bangpa's mental health or capacity to engage in legal proceedings. While acknowledging the stressful nature of the situation, Ms. Grayson concluded that feelings of stress and anxiety after a dismissal or criminal charges are not unusual or exceptional. She also found that while Ms. Bangpa's involvement in criminal proceedings would have been time-consuming, it did not provide a credible or reasonable explanation for the delay, as she was not on remand and had legal representation for at least part of the proceedings.