The COVID-19 pandemic has shaken up workplaces in many ways, least of all by requiring employers to adopt new policies and procedures to manage and minimise the risk of exposure and infection.
Recently, the Fair Work Commission (the Commission) took the failure of an employee to comply with a procedure implemented by their employer in response to COVID-19 to be a valid reason for dismissal. In all the circumstances, the failure of the employee was deemed a serious issue.
In the matter of Fesshatsyen v Mambourin Enterprises Ltd (2021) FWC 1244 (Fasshatsyen v Mambourin), Miss Yordanos Feeshatsyen (the Applicant) was a disability support worker for Membourin Enterprises Ltd (the Respondent). The employer had introduced a procedure whereby employees had to measure their temperature upon entering their workplace. Individuals who read over 38 degrees were required to immediately isolate, notify a designated person, leave the site, and go home or to a medical centre.
On 10 June 2020, Ms Feeshatsyen arrived at work and measured her temperature. When it responded with an unreasonably low measurement, she repeated the process. On the second occasion, she received a reading of 38.5 degrees. Ms Feeshatsyen then remained at work for the day.
As part of an internal investigation conducted by the employer into the above conduct, Ms Feeshatsyen was invited to respond to the alleged conduct at a meeting. Ms Feeshatsyen argued that she knew upon receiving the measurement of 38.5 degrees that she had not been sick and that the temperature reading instrument had been faulty in the first instance and was therefore unreliable. At that meeting, Ms Feeshatsyen was notified that substantiation of the allegation against her could result in termination of her employment.
The next day, Ms Feeshatsyen was summarily dismissed for failing to carry out a reasonable and lawful instruction, and for causing serious and imminent risk to the health and safety of the employer's vulnerable customers and her colleagues at work. Ms Feeshatsyen then applied to the Commission for an unfair dismissal remedy against her employer, pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act).
Considerations by the Commission
The Commission considered Ms Feeshatsyen's terms and conditions of employment in addition to the governing enterprise agreement. These required Ms Feeshatsyen to have regular medical checks, know and comply with the employer's workplace health and safety policies and procedures; and comply with all reasonable workplace health and safety instructions of the employer.
The Commission determined that the specific purpose of the relevant employer policy was to ensure the safety and welfare of all staff and other persons. With this in mind, the Commission asked whether the employer's response was proportionate to the employee's non-compliance with the employer's COVID-19 procedure.
Deputy President Mansini dismissed the application on the basis that Ms Feeshatsyen had failed to carry out a lawful and reasonable instruction, causing what was considered to be a serious and imminent risk to the health and safety of the employer's s customers and employees. This determination was made having regard to the employer's business and the gravity of the risk, which Deputy President Mansini deemed to have made Ms Feeshatsyen's behaviour unjustifiable.
Further, Ms Feeshatsyen's conduct had amounted to a deliberate, knowing and serious breach of the conditions of her employment. Taking into account the lack of contrition and insight into the seriousness of her actions, the reason for dismissal was considered to be sound, defensible and well-founded. The dismissal was also considered to be valid dismissal within the meaning of the Act, and not a disproportionate response to Ms Feeshatsyen's conduct.
Employer directions must be lawful and reasonable to be enforceable. In the context of COVID-19 and due to the gravity of risk, the breach of a related employer direction, policy or procedure will be taken seriously by the Commission.
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