COVID-19 Policy can protect an Employer from an Unfair Dismissal Claim – 2 burning questions to answer

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.

Question 1 – Can an Employer be confident that a policy requiring compliance around COVID-19 procedure be enforced?

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:

  • Initially took the temperature check but because it read a very low (and therefore impossible reading)
  • The second reading was 38.5 degrees which was higher than the policy mandated limit of 38 degrees
  • Despite the reading the employee remained on site at the workplace

The policy required the employee if they received a reading higher than 38 degrees to:

  • Immediately notify and disclose this to a designated person
  • Immediately isolate
  • Leave the work site
  • Go home or to a medical centre

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.

Question 2 – If so, what would happen if an employee sues for unfair dismissal for not following the policy?

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 device checking the temperature was faulty and therefore unreliable
  • She did not know about the procedure and policy
  • She knew that she was not sick (or unwell) and therefore the risk was very minimal

The Fair Work Commission in deciding in favour of the Employer considered the following:

  • The industrial instruments which applied to the employee which included terms requiring:
    • Compliance to policies and procedures
    • Compliance to reasonable and lawful directions
    • Compliance with all health and safety instructions
  • The serious and imminent risk to health and safety
  • The gravity of the risk to the company taking into specific account the clientele and business of the employer
  • The obvious deliberate breach by the employee
  • The lack of contrition and even understanding of how the breach could be construed as misconduct (and a high risk)

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?

NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation – we are happy to help.

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Written By 

Jonathan Mamaril 


NB Lawyers – Lawyers for Employers 

[email protected] 

+61 (07) 3876 5111 

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.