Employee unfairly dismissed over incorrect mask use

23 May 2022

Compensation has been ordered for an aged care employee who was summarily dismissed by their employer for not wearing a face mask correctly.

The employer, an aged care home, was audited by the Aged Care Quality and Safety Commission. During the audit, the appointed inspectors saw an employee pushing a tea trolley while wearing her face mask below her nose. Within ‘about a minute’ of the inspector seeing this, the facility manager approached the employee and asked “Do you know what the consequences of that will be?

That same day, the employee was issued with a letter requiring her to attend a disciplinary meeting to answer an allegation that she had failed to follow the company’s PPE (personal protective equipment) requirements. During the meeting, the employee expressed her remorse, explaining that she had lowered her mask to speak with hearing-impaired residents and that she had forgotten to pull it back up again.

Three days later, the employee was informed that her employment had been summarily terminated without notice, with her employer asserting she had ‘deliberately failed to adhere to the policy’ which placed the residents’ health and safety at risk. The employee lodged a claim for unfair dismissal in the Fair Work Commission.

In his decision, Deputy President Colman agreed that the employee not following the required practices had placed vulnerable persons at risk, which constituted a valid reason for dismissal. However, the Deputy President stated that if the company was intending on summarily dismissing employees for breaching that policy, it should have ‘warned employees that this could be the sanction for such conduct’. The dismissal was therefore considered to be harsh.

Deputy President Colman commented that the employee ‘should have been afforded notice of termination, or payment in lieu of notice.’

The employee was awarded $3,152.84 compensation, representing five weeks’ pay, less 10% for the employee’s misconduct.

EMA Legal can assist employers with all enquiries relating to the dismissal of employees.

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