Is there unfair dismissal if there was failure to comply?
The Fair Work Commission (FWC) recently dealt with an employee’s application who argued he was unfairly dismissed after allegedly failing to comply with the employer’s COVID-Safe plan.
Despite claims of the employee that he was wrongly dismissed, the decision still favoured the employer due to the risks the employee posed in the workplace. If confronted by similar circumstances, what could HR do to ensure a fair dismissal of an employee?
According to the Victorian Chamber of Commerce and Industry’s (VCCI) media release, the New South Wales (NSW) government required businesses to observe a series of health protocols such as registering contact details upon entry, wearing face masks, and complying with a no-travel policy away from their usual place of residence without reasonable cause.
The employee then applied for an unfair dismissal remedy after claiming he was wrongly dismissed for various reasons, such as failing to wear a face mask even though the employee had a medical exemption, according to VCCI.
“The employee was given multiple written and verbal warnings about his conduct and was continuously told that he was required to check-in when entering the premises,” the Victorian Chamber said.
“He was also asked to wear a mask to which he refused and advised he had a medical exemption, which was accepted,” it added.
The business also instructed the employee that he needed to follow the COVID-Safe plan when inside the workplace, VCCI said.
Among the health safety orders included in the workplace, according to VCCI, are working solely in the workshop, observing social distancing, not approaching customers, using the QR code check-in, and avoiding any anti-COVID or anti-government topic at work.
“The employee breached all five requirements of aspects of the COVID-Safe plan and was ultimately terminated from his employment,” the Victorian Chamber said.
The FWC rejected the employee’s application and said the dismissal “was based on the employee willfully failing to comply with the COVID-Safe plan requirements,” the VCCI noted in a media release.
Additionally, the Commission stated that since the employee chose not to obey the COVID-Safe plan, it posed an unacceptable danger to the workplace.
“He impacted the harmony of the business and risked damage to the business’s reputation due to his non-compliance,” the VCCI said.
“He could have spread the infection in the workplace, endangering the health and safety of employees and customers, and expose the business to liability for contravention of public health order,” it added.
