Legal Alert

CAN FAILURE TO SELF-REPORT A HIGH TEMPERATURE READING AMOUNT TO SERIOUS MISCONDUCT?

Authors:  Emma Pritchard, Amy Zhang, Amelia Dowey & Nicola McManis

In response to the COVID-19 pandemic, many workplaces have implemented new procedures and policies to prevent and minimise the spread of COVID-19. A recent Fair Work Commission (“FWC”) decision has found that an employer’s temperature check procedure formed part of its important safety requirements and was designed to ensure the safety of staff and customers through minimising and potentially containing the spread of COVID-19.

The recent Fair Work Commission case of Fesshatsyen v Mambourin Enterprises Ltd (2021) FWC 1244 (“Fesshatsyen v Mambourin Enterprises”) suggests that breaches of a workplace’s COVID-19 safety procedures by employees will be taken seriously by the FWC. Specifically, the purpose of these policies in ensuring the safety and welfare of staff and other persons was a key consideration when determining whether the summary dismissal of an employee was a disproportionate response by the employer to an employee’s non-compliance with the employer’s COVID-19 policies and procedures.

In Fesshatsyen v Mambourin Enterprises, Miss Yordanos Feeshatsyen (the “Applicant”) applied to the FWC for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (“Fair Work Act”) against her employer, Mambourin Enterprises Ltd (the “Respondent”).

The Applicant, a disability support worker, was summarily dismissed by the Respondent, a disability support provider, after an internal investigation found she had failed to disclose her temperature reading of 38.5 degrees and continued to work that day, in contravention of the Respondent’s COVID-19 policies and procedures.

The FWC heard that the Respondent had previously introduced mandatory temperature monitoring for all staff and customers entering the Respondent’s workplaces to prevent and minimise the spread of COVID-19, of which the Applicant was well aware. Individuals who received a temperature reading above 38 degrees were directed to immediately isolate, leave the site and go home or to the medical centre.

The FWC found that the terms and conditions of the Applicant’s contract and the governing enterprise agreement required the Applicant to:

1. undergo regular medical checks, including at the Respondent’s request or direction;
2. acquaint herself and comply with the Respondent’s occupational health and safety policies and procedures; and
3. comply with all reasonable instructions to protect her own health and safety and that of other staff and other persons.

The FWC heard and accepted evidence from the Respondent that, on 10 June 2020, the Applicant attended work and undertook a mandatory temperature check. A second temperature check, which was required after the first temperature check produced an impossibly low reading, gave a result of 38.5 degrees. Despite the Respondent’s COVID-19 policies and instructions, which included the obligation to notify a designated person of an elevated temperature reading (any reading above 38 degrees), the Applicant continued to work on site that day.

An internal investigation was conducted by the Respondent regarding the Applicant’s attendance at work after receiving a temperature reading above 38 degrees. The Applicant was invited to respond to the allegations at a meeting, which she did, and was notified that the allegation, if substantiated, could result in the termination of her employment. At the time, the Applicant acknowledged she knew she was not to go to work if she was sick, however repeatedly asserted the temperature check device was faulty and not accurate and she was not sick.

The following day, the Applicant was summarily dismissed on the basis that she had failed to carry out a reasonable and lawful instruction, causing serious and imminent risk to the health and safety of the Respondent’s vulnerable customers and the Applicant’s work colleagues.

Deputy President Mansini dismissed the application for an unfair dismissal remedy, finding that the Applicant was required to follow the Respondent’s COVID-19 procedures and instructions, relevantly stating (at [34]):

Having regard to the Respondent’s business and the gravity of the risk, I consider the requirement to comply with the temperature check procedure and the instruction to self-report any reading in excess of 38 degrees to a manager to amount to reasonable and lawful directions consistent with the terms and conditions of the Applicant’s employment.

The Applicant raised a series of justifications for her behaviour, including that the temperature checking device must have been inaccurate (given the inconsistent readings between the first and second temperature check), that she did not know the temperature check procedure, and that she ‘knew’ at the time of receiving the 38.5 degrees reading that she was not unwell. The Commission rejected each of the Applicant’s claims and found the Applicant’s behaviour to be unjustifiable, relevantly finding (at [36]):

[T]he Applicant was informed of the temperature check procedure and the instruction to report any reading in excess of 38 degrees to management. Even if she chose not to familiarise herself with these requirements, these were reasonable and lawful directions with which she was obliged to familiarise herself and comply with as conditions of her employment.

Deputy President Mansini was satisfied the Applicant’s conduct amounted to a deliberate, knowing and serious breach of the conditions of her employment. The Applicant’s lack of contrition, during the internal investigation and before the Commission, and lack of insight into the seriousness of her behaviour were factors Deputy President Mansini gave weight to in considering whether the Applicant’s dismissal was harsh, unjust and/or unreasonable. Ultimately, Deputy President Mansini held there was a sound, defensible and well-founded reason for the Applicant’s dismissal which was valid within the meaning of the Fair Work Act, and concluded (at [72]):

The seriousness of the procedure and instruction to ensuring the safety of the Respondent’s staff and customers are paramount to my consideration that summary dismissal was not disproportionate to the conduct.

This decision highlights that where workplaces’ COVID-19 policies and procedures are lawful and reasonable, they must be followed by employees. Deliberate breaches of these policies and procedures are treated seriously by the FWC because of the gravity of non-compliance resulting in the spread of COVID-19. This case clearly demonstrates that the FWC will view very seriously employees not taking these policies and procedures seriously, or being dishonest about the results of health checks, particularly in workplaces where there are interactions with vulnerable persons.

If you require assistance in regards to your COVID-19 policies and procedures, or for more information on this case, please do not hesitate to contact our team of specialists.

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