Mask up: Commission finds mask mandate to be a lawful and reasonable direction

Employees have a duty to comply with lawful and reasonable directions from their employer. In the current COVID-19 context, a key concern for employers is whether it is lawful and reasonable to issue directions related to safety matters arising from the pandemic.

In measuring the reasonableness of a direction, the Fair Work Commission (FWC) has demonstrated its regard to the particular circumstances of the case in the recent decision of Watson v National Jet Systems Ltd [2021] FWC 6182.

In or around October 2020 and in response to the COVID-19 pandemic, Qantas (the Employer) introduced a mandatory mask wearing policy for all cabin crew, subject to an approved reasonable medical exemption. At the time, mask mandates for cabin crew were not yet a legal requirement under public health orders.

An employee sought an exemption from wearing the face mask on the grounds that it made her “extremely anxious” and she had trouble performing her job safely. She provided a medical certificate to that effect, but the Employer did not consider this to be a reasonable medical exemption.

Between November 2020 and December 2020, the Employer noticed that the employee was not complying with the face mask mandate.

The Employer consulted the employee in relation to her non-compliance to which she responded that she suffered from Hashimoto’s Disease and a very rare skull tumour. The employee provided a medical certificate confirming that she suffered from the two conditions however it was her anxiety that prevented from wearing a mask.

The Employer consequently issued the employee with a medical exemption stating that she could instead wear a face shield as opposed to a face mask. However, the Employee continued to refuse to wear a face mask or shield.

In light of the medical evidence submitted by the employee, the Employer grew concerned about the employee’s inability to wear a face mask as well as her inability to wear an oxygen mask in an emergency.

The Employer therefore decided that the employee was temporality unfit for flying duties and directed she attend an independent medical examination (IME) to obtain clarity as to her fitness to work. The employee refused to attend the IME and also refused to perform the non-safety critical duties that the Employer had offered her in the interim.

On 7 May 2021, the Employer sent a letter to the employee’s legal representative stating that it was a lawful and reasonable direction to require the employee to wear the mask or shield and if she continued to not comply, she would face disciplinary action. It also directed that the employee return to her role as cabin crew member.

On 13 May 2021, the employee’s representative responded to the letter stating that the mask mandate was a variation of the employee’s contract of employment to which she did not consent. It stated that the Employer had therefore repudiated the employment contract and terminated her employment.

The employee subsequently made an application to the FWC claiming that she had been constructively dismissed by the Employer on 13 July 2021.

The Employer disagreed, stating that the employee was never dismissed. It submitted that the mask mandate was consistent with its safety leadership position in aviation, the wishes and preferences of its customers, and with best-practice health advice about transmission risks.

The FWC found that the mask mandate was a lawful and reasonable direction in the context of the COVID-19 pandemic. It found that it was reasonable for the Employer to not be satisfied by the medical evidence provided and to instead direct the employee to attend an IME to further investigate her medical claims.

The FWC was satisfied that Employer gave the employee several options to remain in employment such as attending work as directed, wearing a face shield or attending the IME to obtain further evidence. Therefore, the FWC considered it reasonable for the Employer, in its letter dated 7 May 2021, to direct the employee to return to work and comply with its mandate.

The FWC rejected the employee’s submission that the letter repudiated the employment contract and held that her employment instead remained on foot. It was held that the employee instead resigned on 13 May 2021 and therefore, she was not constructively dismissed.

The FWC was satisfied that the Employer made every attempt to engage in reasonable management action. The FWC found that the Employer was entitled to make further enquiries regarding the employee’s condition to ensure that she was fit to work in a safety critical industry. It noted that to allow the employee to return to work without such an assessment would be considered a safety and reputational risk.

The FWC therefore ordered that the application be dismissed.

Lessons for employers

Employees are obligated to comply with directions from their employer which are lawful and reasonable in the circumstances. As seen in this decision, the FWC carefully considered the safety critical nature of the aviation industry when finding it reasonable for the employer to take steps to implement and enforce the mask mandate and seek verification of the employee’s exemption.

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