The COVID-19 pandemic has led to a number of changes in the workplace and as a result, the Fair Work Commission has seen a major spike in unfair dismissal and general protections claims. Minimising health and safety risks through policy development around exposure to COVID-19 is near the top of many lists for human resources, in particular in the Health and NDIS related business industries.
Can an Employer be confident that a policy requiring compliance around COVID-19 procedure be enforced?
If so, what would happen if an employee sues for unfair dismissal for not following the policy?
Good questions to ask.
A disability support organisation was forced to answer this question in the Fair Work Commission. In the matter of Fesshatsyen v Mambourin Enterprises Ltd (2021) FWC 1244 (Mambourin Case) the company had brought in a new policy to prevent the spread of COVID-19 - a compulsory temperature check before entering the workplace.
The employee at the centre of the Mambourin Case did the following:
The policy required the employee if they received a reading higher than 38 degrees to:
The employee did not.
The Employer undertook an investigation and were confident to dismiss the employee for failing to follow reasonable and lawful directions and comply with all reasonable instructions to protect their own and others health and safety.
Would the Fair Work Commission in the Mambourin Case consider the steps taken by the Employer as reasonable in the circumstances?
The employee argued that:
The Fair Work Commission in deciding in favour of the Employer considered the following:
The Fair Work Commission in this Mambourin Case gives Employers the clearest indication yet that well drafted policies around health and safety risk for COVID-19 related issues will be looked upon seriously. If done properly, an unfair dismissal claim will be fully defended.
Need help with avoiding an unfair dismissal claim like the above? Received an unfair dismissal claim and need help to defend it?
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Jonathan Mamaril, Director - NB Lawyers - lawyers for employers
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars.
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