Are COVID-19 breaches sackable offences?

COVID-19 has killed nearly 850,000 people worldwide.

Given that society must go on, all employers in the pandemic have been required to adapt to and implement an evolving set of safety standards, which would have seemed dystopian just 12 months ago.

Sanitisation, mandatory reporting, contact tracing, social distancing, isolation, quarantine and constant use of personal protective equipment are just some of the measures that have rapidly evolved into ordinary standards of workplace safety in almost all industries (not just 'risky' ones). COVID-related safety standards are enforceable not only through WHS legislation but through criminal law.

If the stakes are that high, what then are the consequences for an employee who fails to meet these new safety standards? Does the pandemic provide license for employers to terminate summarily the employment of employees who aren't COVID-19 safe? Given the risks, how could such a dismissal be deemed ‘unfair'?

Fairness is of course a relative concept.  Given the myriad of safety obligations which now apply in the COVID world, whether an employee's breach can justify their termination will depend on what rule was breached, how it was breached, by whom, the risks, and wider considerations of procedural fairness. 

Whether you are an office worker or a 17 stone middle forward for the Brisbane Broncos in need of a haircut, the COVID conditions on your employment (and consequences of breach) will vary greatly.

Two recent cases demonstrate scenarios where a COVID-safety dismissal has been deemed 'fair'. The first case describes a failure to comply with a reporting obligation and the second outlines what can only be described as a reckless and unsafe act.

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In Knight v One Key Resources [2020] FWC 3324, the Fair Work Commission held that the repeated refusal of an employee to complete a survey seeking information about his previous and future travel arrangements justified his termination.

The employee had refused to disclose these matters on privacy grounds and argued that this information was not required to assess the risk posed by COVID-19 to the workplace. The employee received a warning and then a termination notice on the same day.

Lesson One for employees (and HR advisors dealing with these issues): While your travels may have been a purely personal matter pre-COVID, this is no longer necessarily the case. Taking a stand on the principle of personal privacy could cost you your job in these very troubled times.

In Hooshmand v Cater Care [2020] FWC 4371, the Fair Work Commission upheld the dismissal of an aged care employee who it was alleged had deliberately coughed in the face of a Registered Nurse who was taking his temperature for COVID purposes.

Although the employee claimed the cough was accidental, the Commission found that the employee had not attempted to restrain or shield the cough, had not immediately apologised and had only done so reluctantly after being later instructed to do so.

The Commission noted the high risk environment of the aged care setting and found that the behaviour of the employee was inconsistent with the expectations of his employer and posed a potentially serious health risk to the residents and employees of the site.

Read more: Data protection and working remotely

Lesson Two for employees: Do all that you can to avoid coughing in the face of anyone during this pandemic.

While these two cases concern very different behaviour, the underlying reasoning behind both acknowledges that the very serious risks posed in the COVID environment renders conduct, which in more ordinary times would be described as merely difficult or careless, as sufficiently serious to warrant termination. The fact the conduct in both scenarios appeared to be deliberate can be seen as a critical factor.

Risks nevertheless abound for employers in this space. Not every termination for a COVID breach will be free of risk. Central to a decision to terminate will be consideration of the following questions:

1. Is the safety standard which has been breached reasonable having regard to the risks? 
2. What were the risks of the breach? 
3. What were the consequences of the breach? 
4. Was the relevant safety standard clearly communicated to the employee? 
5. Was the employee's conduct deliberate?  
6. Was the employee treated fairly in comparison to other employees? 
7. Was the employee provided with an opportunity to respond? 
8. Is the employee a long serving employee and what is their safety record? 
9. What effect will termination have on the employee?

For some employers, the commercial and safety risks of non-compliant employees during COVID will simply be too high regardless of the prospect of an unfair dismissal claim. For these employers, a ‘zero-tolerance’ approach may be seen as the only viable option in very uncertain and dangerous times.

For such employers, it must be understood that the Commission will not stand in your shoes and assess what the Commission would have done had it been in your position. Instead, the Commission must objectively determine the fairness of the dismissal having regard to the events that occurred.

This could very well mean that an employer who 'had no choice but to terminate' for a COVID safety breach will still face an unfair dismissal liability. In which case, seek advice.

Julian Arndt - Associate Director, Australian Business Lawyers & Advisors (ABLA)