Failure to comply with COVID-19 safety requirements valid reason for dismissal

Cohen v Davidsons Garage Pty Ltd

Background

The applicant in this unfair dismissal matter commenced employment in January 2020 as a motor mechanic and was summarily dismissed on 23 August 2021. The applicant had an exemption from wearing a face mask, and the respondent had accordingly implemented COVID-19 safety requirements including not permitting the applicant to enter the office or approach or serve customers, and also requiring the applicant to check in daily using the QR code and practise social distancing. In a letter of 23 August 2021 the respondent advised the applicant of the reasons for his dismissal, namely that he:

• illegally travelled to the snow when a NSW Government public health order prohibited him from leaving Greater Sydney

• travelled without advising respondent of his movements, with no consideration of potentially returning to respondent’s premises with a COVID-19 infection

• did not use QR codes

• did not comply with COVID-19 safety requirements in place to allow him to work without a mask

• did not believe in COVID-19 nor the Government’s public health orders, which was a safety risk to respondent’s staff and customers

• ignored several warnings to cease his unacceptable behaviour.

Outcome

The Commission found that the applicant knew about the Government travel restrictions but intentionally did not comply because he considered them unconstitutional and believed that the pandemic was a scam. The Commission noted that an employee’s unlawful conduct, while not at work, is not as such a valid reason for dismissal. The unlawful conduct must be likely to cause serious damage to employment relationship, or damage employer’s interests, or be incompatible with employee’s duty as an employee [Rose v Telstra].

The Commission found that the applicant did tell his manager that he intended to travel to the snowfields, and his manager failed to inform the respondent of this or to warn the applicant that this would be in breach of Government travel restrictions and that the applicant’s return to work would be a risk to the health and safety of the workplace. The Commission noted it would have found the applicant’s reckless non-compliance with travel restrictions a valid reason for dismissal but for 2 countervailing matters. First, the applicant’s manager acquiesced in the applicant going to the snow such that the applicant might reasonably have assumed his contravention of the travel restrictions would not have any consequences for his employment. And second, after the applicant’s trip to the snow, the respondent initially required him to take a COVID-19 test before returning to work but when the applicant refused to be tested, the respondent instead required that the applicant not return to work for a further week. The applicant complied and was then permitted to return to work. The Commission concluded that the applicant’s dismissal, 2 weeks after he returned to work, could not be justified by reference to his trip to the snow.

In relation to COVID-19 safety requirements, the Commission found it ‘very doubtful’ that the applicant had a legitimate exemption from wearing a mask. The Commission cited Mt Arthur Coal Pty Ltd and NSW Trains and held that the respondent’s COVID-19 safety requirements were a lawful and reasonable direction that applicant was required to, and had agreed to, comply with. The Commission further found the applicant’s wilful and repeated failure to comply with the COVID-19 safety requirements, despite warnings to do so, constituted a valid reason for dismissal. The Commission held that the applicant was entitled to his beliefs about the pandemic and public health orders but was not entitled to refuse to comply with the respondent’s lawful directions and Government orders applying to the workplace on the basis of those beliefs.

The applicant’s behaviour posed unacceptable health and safety, liability and reputational risks to the respondent. The applicant’s behaviour arising out of his beliefs constituted a further valid reason for dismissal. The Commission found that the applicant was denied an opportunity to respond to the reasons for his dismissal. This was a denial of procedural fairness which was not excused by the relatively small size of the respondent’s business, nonetheless the Commission concluded that if the applicant had been afforded procedural fairness, there was no possibility he might have given a response or explanation which might have avoided or delayed his dismissal. The Commission concluded that the applicant was ‘utterly unrepentant’ about the conduct which caused his dismissal and that the applicant’s beliefs about the pandemic made him ‘impervious to directions and warnings from management’. The Commission found that the dismissal was not harsh, unjust or unfair. The application was dismissed.

Read decision [2021] FWC 6587.

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Report provided by the Fair Work Commission