An employee applied for an unfair dismissal remedy alleging his dismissal was unfair for several reasons, including not wearing a face mask despite having a medical exemption.

The business was required to follow a series of health orders imposed by the NSW Government, which included registering contact details upon entry, wearing masks, and not travelling away from their normal place of residence without reasonable cause.

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. He was also asked to wear a mask to which he refused and advised he had a medical exemption, which was accepted.

The business advised the employee he also needed to follow the ’COVID-Safe plan’ while at work, which included only working in the workshop, practicing social distancing, not approaching customers, using the QR code check-in, and refraining from anti-COVID or anti-government discussion at work.

The employee breached all five requirements of aspects of the COVID-Safe plan and was ultimately terminated from his employment.

The decision

The application was ultimately denied, with the FWC rejecting the argument that the employee was unfairly dismissed. The Commission confirmed the dismissal was based on the employee willfully failing to comply with the COVID-Safe plan requirements.

The FWC stated that since the employee was unwilling to follow the COVID-Safe plan, this was an unacceptable risk to the business. He impacted the harmony of the business and risked damage to the business’s reputation due to his non-compliance. Hecould 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.

Learnings for business

When considering termination of any employee’s employment, it is important to ensure there is a valid reason for dismissal that it is not unjust, and such reason can be supported if an application was made to the FWC.

This decision showcases the importance of a COVID-Safe plan and the need for businesses to follow government mandates, as well as the possible consequences where employees are unwilling to follow COVID-19 directions made by businesses.

How we can help

It is important for businesses to follow a fair process when making a role redundant, as well as understand each employee’s redundancy entitlements. Our experienced consultants at the Victorian Chamber can support business in representing and advocating for members to assist in negotiating in the Fair Work Commission proceedings.

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

• Award interpretation, classification and minimum entitlements
• Disciplinary processes, performance management and termination
• Personal illness and injury
• Parental leave and flexible working arrangements
• Redundancy
• Occupational Health and Safety and WorkCover.
• For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

Workplace Relations Advice Line

Trying to deal with workplace issues alone but don’t know where to start? Before you take any action, call our Workplace Relations Advice Line.

Employment termination

It is important to manage the termination of an employment relationship carefully to ensure you meet your legislative obligations, regardless of whether the employment contract is terminated by the employer or employee.

Wages and entitlements

Is your business paying its employees correctly? When it comes to wages, awards and entitlements, ensure that your business complies with the law with professional support from our Workplace Relations Advice Line and consultants.

Health and safety compliance

Does your business understand and comply with its legal obligations for workplace health and safety? Would your business benefit from safety accreditation?