Find out what happened to a worker who wore it 'below her nose'
The Fair Work Commission (FWC) has recently dealt with an unfair dismissal claim of an employee who was summarily dismissed because she was not wearing her face mask correctly, which was allegedly against the employer’s policy.
The issue, in this case, revolved around the employee’s argument that she was dismissed without warning after six years of employment, saying she had only lowered her mask to talk to the employer’s client, who was “hard of hearing.” Find out about the FWC’s decision and the circumstances it considered to resolve the dispute.
The employee worked as a food services assistant at the employer’s aged care facility in Shepparton. She was responsible for preparing meals and drinks and distributing them to the facility’s residents.
In December 2021, auditors from the Aged Care Quality and Safety Commission (ACQSC) were assessing the facility. The clinical care manager told staff that there would be an audit that day and reminded employees that they had to properly wear their personal protective equipment (PPE).
After breakfast, the employee began her rounds of the residents’ rooms with the tea trolley. Her colleague accompanied her. Towards the end of the round, as they crossed a corridor from one room to another, they saw the auditor stop briefly, then walk quickly past them.
Within a minute, the facility manager rushed up to them and said: “The auditor just caught you without your masks on correctly. Do you know what the consequences of that will be?”
The employee argued that she had just come out of the room of a new resident who was hard of hearing and that she had had to lower her mask so that he could hear what she said.
She said that she had then forgotten to pull her mask back up before moving to the next room, at which point the auditor had seen her. She also acknowledged that she had made a mistake but said it was not a deliberate one.
She argued that the company’s policy about wearing masks was “not consistently enforced” and that other workers who did not wear their masks properly were not dismissed.
As for the employer, it said that it had “a clear and consistently applied policy” about the PPE and reminded staff that masks were to be always worn properly. It said the employee’s failure to wear her mask correctly was “a serious failing warranting immediate dismissal.”
In his decision, the FWC ruled that the employee’s failure to follow the required practices had “placed vulnerable persons at risk,” which was considered a valid reason for dismissal. The ACQSC findings were deemed a sound and reasonable basis for the termination of her employment.
However, the Deputy President stated that if the company intended to summarily dismiss employees for breaching that policy, it should have “warned employees that this could be the sanction for such conduct.” Therefore, the dismissal was considered harsh.
According to the decision, s 387 of the FW Act does not require the FWC to consider whether an employee was warned about conduct (as opposed to poor performance) that is a reason for dismissal. However, a warning may be a “relevant consideration” under certain circumstances.
In this case, the FWC said that the employee’s conduct was serious. “She knew that she was required to keep her mask up. She did not do so. This placed residents’ health at risk. It contributed to the company receiving adverse findings in the external audit. The conduct warranted dismissal. However, summary dismissal was disproportionate in the circumstances because she had not been told that her employment was at risk of immediate dismissal if she did not wear her mask properly. She should have been afforded notice of termination of employment, or payment in lieu of notice,” the FWC explained.
Thus, the FWC said that even though there was a valid reason for dismissal, it was still deemed harsh. Consequently, the employee was awarded compensation for five weeks’ pay, less 10% for her misconduct. The decision was handed down on 17 May.
