Health, safety and covid exemptions in the workplace

A recent Fair Work Commission decision, Cohen v Davidsons Garage Pty Ltd [2021] FWC 6587, dealt with a terminated employee who said he had exemptions excusing him from complying with covid safety requirements.

The decision shows the importance of:

1. Having sound evidence for any exemptions from complying with covid safety requirements, such as mask exemptions; and
2. Following correct processes and procedures when managing employees.

Background

• The Applicant was a motor mechanic at a garage in Sydney who commenced employment with the Respondent in January 2020.

• He was dismissed without notice on 23 August 2021 (Summary Dismissal).

• The reasons for the dismissal were said to be as follows:

• Illegally travelling to regional New South Wales for a trip to the snow during a public health order preventing him from leaving the Greater Sydney Area.

• Failing to follow the measures which were put in place to allow him to work at the workplace due without a mask due to his exemption. These measures included using QR codes to check in, not approaching customers, avoiding entering the office and practicing social distancing.

• Not believing in covid-19 and the public health orders associated with it and therefore presenting a safety risk to staff and customers.

• The Applicant made an unfair dismissal application to the Fair Work Commission.
  
• There were various public health orders in place in Sydney during the relevant time period due to a covid outbreak which the employer was required to follow. These orders included:

• Wearing a face mask indoors unless an exemption applies on the basis of ‘a physical or mental health illness or condition, or disability, that makes wearing a fitted face covering unsuitable including, for example, a skin condition, an intellectual disability, autism or trauma’.

• Checking in electronically upon entering any business premises.

• A requirement for premises to not allow more persons on the premises than the equivalent of 1 person per 2 square metres of space to enable social distancing of 1.5 metres between persons.

• Persons not being permitted to leave their place of residence save for reasonable excuses such as work which could not be completed at home or exercise. Taking a holiday was expressly stated not to be a reasonable excuse.

Following covid safety requirements in the workplace

Upon one of the directors of the employer finding out that the Applicant had travelled to regional New South Wales, she advised that the Applicant would need to obtain a negative covid test prior to returning to the workplace and wear a mask at all times at the workplace. This was communicated to the Applicant by his manager.

The Applicant then signed a statutory declaration which stated “I suffer from a genetic chronic sinusitis which affects my breathing. I also suffer from anxiety.” The Applicant suggested that this meant he could not obtain a covid test and could not wear a mask.

The Fair Work Commission rejected the idea that a covid test represents a risk to someone with sinusitis.

The Applicant did not produce any medical evidence or other evidence that confirmed he was “unsuitable” for wearing a mask. His manager nor his colleague and friend who he had known for seven years had heard of him suffering from either of these conditions. Accordingly, the Fair Work Commission was skeptical regarding the legitimacy of his mask exemption.

Nevertheless, the employer accepted his mask exemption and put in place a covid safety plan to allow him to safely work at the business premises without a mask.

The Fair Work Commission ultimately decided that because the employer had accepted the mask exemption and put in place a covid safe plan, which the Applicant then repeatedly and brazenly breached even in the face of warnings from the employer, this demonstrated a real risk to workplace health and safety regardless of the legitimacy of any mask wearing exemption.

The termination

The reasons listed for the Applicant’s termination in the employer’s termination letter included his travelling to regional New South Wales approximately one month prior to his dismissal.

The Fair Work Commission decided that because the employer had evidence of his travel plans prior to him leaving and did not act on this immediately, this could not be considered a valid reason for Summary Dismissal.

However, the other reasons listed, that the Applicant failed to comply with a covid safety plan and that his beliefs regarding covid presented an unacceptable health and safety risk, were considered valid reasons for Summary Dismissal. The latter was considered a valid reason because his beliefs manifested in such a way that resulted in him breaking workplace health and safety guidelines.

Accordingly, the Fair Work Commission found that there were some procedural issues with the termination, such as the reliance on the Applicant’s travel to regional New South Wales two weeks after he had returned to work. However, due to the legitimacy and seriousness of the other two reasons which were valid, there was no unfair dismissal.

If the seriousness of the Applicant’s conduct did not meet this threshold, the Applicant would have likely succeeded in his unfair dismissal claim due to the procedural mistakes made by the Respondent.

This is a demonstration of the complexity of the processes and procedures which should be followed by employers when terminating an employee and why we strongly recommend that employers seek legal advice when doing so.