Authors: Amy Zhang and Zeb Holmes
What is the Great Resignation?
The term ‘the Great Resignation’ was coined by Dr Anthony Klotz, an associate professor from Texas A&M University, in late 2020 to describe the increasing number of Americans quitting their job. The US resignation rate has been rising since shortly after the pandemic was declared and is now at 3%, which equates to 4.4 million people quitting their jobs in September 2021.
Dr Klotz cited four trends underpinning the Great Resignation:
- a backlog of resignations from those who stayed in jobs they would have otherwise left during the uncertainty of COVID;
- levels of burnout, heightened by unreasonable workloads and an inability of some to switch off from work;
- “pandemic epiphanies” leading to lifestyle change; and
- those who simply do not want to return to the office environment.
A recent PwC Australia report, entitled ‘What Workers Want’, surveyed 1800 workers and found that 38% are looking for a new job. Similarly, a September 2021 survey of 1000 people by HR platform Employment Hero, found that 48% of Australian workers planned to look for a new job in the next six months.
Aaron McEwan, behavioural scientist from global research and advisory firm Gartner, estimates that up to 60% of Australian workers could soon be considering changing jobs, predicting that the Great Resignation will ramp up in Australia in March 2022 once people receive their Christmas bonuses and recruiting restarts.
There are differing reports of the extent to which the Great Resignation is a US-specific issue. RBA assistant governor (economic) Luci Ellis cited Australians’ experience during the pandemic as being “very different” to that of Americans, noting that the US has much lower wages at the bottom end and did not have JobKeeper. Relevantly, JobKeeper was a temporary scheme introduced by the Federal Government and operational for each fortnight worked between 30 March 2020 and 28 February 2021 to allow employers to change workplace arrangements and claim “JobKeeper payments” until business conditions improved. Even so, Australian companies must prepare for the worst and existing figures from LinkedIn already show a 26% jump in Australian workers moving from one company to another in October 2021, compared with the same time in 2019 before the pandemic.
Employers do not necessarily have to simply accept the Great Resignation, but can start to proactively consider measures to respond to and prevent the same in the context of their business. In particular, employers should consider the underlying issues driving the Great Resignation and what benefits and entitlements employers can provide to retain good staff. Measures that employers can consider include:
- increasing wages and providing retention bonuses;
- providing greater flexibility, for example a hybrid working model or flexible work hours to accommodate personal commitments and improve work-life balance;
- providing and promoting family friendly policies and initiatives;
- providing cutting edge and above market leave policies and entitlements, including, for example, additional paid parental leave, paid IVF leave and additional paid annual leave;
- providing other additional benefits such as gym memberships, free massages and bring your pet to work days.
Employers should also consider if there are underlying systemic issues within the business that may result in employees leaving, for example, systemic issues like understaffing that may cause burnout and resignation. Addressing these issues early will save employers the significant costs and down time associated with having to hire and train new employees.
If businesses are unable to retain their staff in the wake of the Great Resignation, they should consider the following legal issues that can arise from a resignation.
Pay on termination
There are several payments that might be owing to a resigning employee. Whether these apply and their precise quantum depends on the circumstances of the employment (part-time, full-time or casual) and the source of their entitlements (modern award, enterprise agreement, statute or contract). In general, you must consider whether the following are owing:
- Any outstanding wages for hours worked, including penalty rates and allowances
- The balance of any time off accrued in lieu of overtime that the employee has accrued but not yet taken
- Unused annual leave
- Unused long-service leave
- Notice pay, if the employee is not being required to work out their notice
Most modern awards provide that employers need to pay their employee their final payment within 7 days of the employment ending (see, for example, clause 17.5 of the Clerks – Private Sector Award 2020 (“Clerks Award”)). Some legislation specifies when payment is to be made (for example the New South Wales Long Service Leave Act requires payment of untaken long service leave to be made “forthwith”). Otherwise, an employment contract or enterprise agreement may specify when these final payments must be made. If these documents do not apply or specify timing, the Fair Work Ombudsman (Australia’s national workplace relations regulator) says that best practice is for an employee to be paid within 7 days of their employment ending, although we note that there would be some leeway to allow for final payment to be made in the next scheduled pay run, particularly if this was done fortnightly.
If an employee has not provided notice, the employer can only recover wages in specific circumstances (see section 324 of the Fair Work Act 2009 (Cth) generally regarding permitted deductions in pay).
Most modern awards say that an employer can deduct up to one week’s wages from an employee’s pay if:
- the employee is over 18;
- the employee hasn’t given the right amount of notice under their award; and
- the deduction isn’t unreasonable (see clause 41.1(d) of the Clerks Award).
However, employers can only deduct pay from wages owed under the award. They can’t deduct from other entitlements owed to the employee, such as accumulated leave or other over-award payments.
There may be corresponding rights to deduct wages for a failure to give notice in any applicable enterprise agreement. If this right is not specified in an award, an enterprise agreement or under some other Commonwealth or State or Territory law, the deduction must be authorised in writing by the employee (which must set out the amount of the deduction) and be principally for the employee’s benefit.
If an employee’s non-provision of sufficient notice causes or may cause significant loss and damage to the business, an employer may be able to seek damages against the employee, or if the employee is going to another employer, it may be possible to seek damages from the employee’s new employer or even damages, depending on the circumstances.
Restraint of Trade and Confidentiality Obligations
Employers should check whether a departing employee is bound by post-employment obligations. These obligations are contractual, and if an employer wants the protection of such provisions and they are not in current contracts, the consent of the employees to new contractual terms will be required. An employer cannot force a current employee to agree to a restraint, and attempts to do so can result in claims for breach of contract.
Assuming a contractual obligation is in place, while precise wording might differ, these obligations will generally provide that following resignation an employee may not:
- work for a competitor of the employer’s business for a period of time;
- solicit any clients, customers or fellow employees to work with or for a competing business for a period of time; and/or
- use or disclose confidential information after leaving employment.
The terms of the restraint, including the time and area of the restraint, must be no more than is reasonably necessary to protect the legitimate business interests of the employer. It is only on this basis that the law allows a former employer to restrict an employee’s freedom to work as they please. An unreasonably broad restraint clause will be unenforceable and will therefore have no effect.
If an employee is bound by post-employment obligations, an employer should remind the employee of those obligations. An employer should also consider whether to place the employee on gardening leave during the notice period (there needs to be a contractual right to do so), as well as take the opportunity to review any electronic devices or communications if there is a concern of potential breach of any restrictive covenants. These rights will usually be provided for in the employment contract.
If there is any concern of potential breach of the post-employment obligations, employers should act quickly, including writing to the employee about the potential breach and instituting injunctive proceedings as necessary. In this regard, the Court will consider any delay in commencing proceedings in considering whether to grant injunctive relief.
It is noted that if there are no contractual restrictive covenants in place, the ability of employers to seek injunctive relief on the basis of rights and obligations at general law will be significantly limited.
However, as a matter of best practice and to the extent that employers do not already have restrictive covenants in their employment contracts, employers should consider whether to implement them for future employees.
Protections in Tort – Inducing a Breach of Contract
Further, if your employees are being aggressively courted by competitors, you may consider whether you are entitled to the protections afforded by the tort of inducing a breach of contract. The elements of this tort (in an employment context) are that:
- there is an employment contract;
- another business is aware that such a contract exists and that certain acts will result in a breach (e.g. providing confidential information or approaching former clients in breach of a restraint clause);
- notwithstanding this knowledge, this other business induces the employee to do the act or omission that will breach the employment contract; and
- this results in loss or damage to the original employer.
A notable recent example of this tort in action can be seen in Employsure Ltd v McMurchy; Employsure Ltd v Kumaran  NSWSC 1179. In this case, the NSW Supreme Court enforced Employsure’s 9-month post-employment restraints after two senior employees left to work for a competitor in the HR software market. The Court also held that competitor ELMO Software was liable as having induced one employee to breach his contract with Employsure (by encouraging him to recruit the second employee). The Court imposed injunctive relief, preventing both former-Employsure employees from joining the competitor business or using any confidential information.
Key Action Points for Human Resources and In-house Counsel
Understanding the above issues may help businesses to navigate the Great Resignation. In particular, employers can start to consider ways to prevent staff departures. To the extent that employees cannot be retained (including through the measures suggested above), employers can start taking into account what needs to be done and considered when the Great Resignation hits. Employers can also start future-proofing their business in anticipation of the Great Resignation, including for example by getting restrictive covenants in place in so far as they are not already a feature of current employment agreements.
- 1. https://www.cnbc.com/2021/11/12/a-record-4point4-million-people-quit-jobs-in-september-great-resignation.html
- 2. https://www.smh.com.au/business/workplace/navigating-the-great-resignation-20211109-p597ba.html
- 3. https://www.smh.com.au/business/workplace/australia-s-version-of-the-great-resignation-revealed-as-staff-swap-jobs-20211111-p5984f.html
- 4. https://www.news.com.au/finance/work/at-work/the-great-resignation-millions-of-aussies-predicted-to-leave-jobs/news-story/36aaf2081cc6a17c095b9dd0105814c3
- 5. https://www.news.com.au/finance/work/reserve-bank-official-says-the-great-resignation-is-a-us-story-and-australia-is-different/news-story/7e0ac14edc9d0323607ce4364908f96f
- 6. https://www.smh.com.au/business/workplace/australia-s-version-of-the-great-resignation-revealed-as-staff-swap-jobs-20211111-p5984f.html
- 7. https://www.fairwork.gov.au/ending-employment/notice-and-final-pay/final-pay
Authors: Paul Lorraine, Justin Pen and Liz Baradan
On 3 December 2021, a Full Bench of the Fair Work Commission, Australia’s national workplace relations tribunal, determined that a direction by a BHP company which required all workers at its Mt Arthur mine to receive a COVID-19 vaccination as a condition of site entry, was lawful but not reasonable. The determination was made following findings that the company had failed to adequately consult with its workers prior to the issuance of that direction.
The decision in CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal  FWCFB 6059 dealt with a dispute in relation to a COVID-19 vaccine mandate that was introduced at the Mt Arthur mine in the Hunter Valley in New South Wales. The Mt Arthur mine and Valley Energy Coal Pty Ltd, which owns and operates the Mt Arthur mine, are both members of the BHP group of companies.
On 7 October 2021, Mt Arthur Coal Pty Ltd (Mt Arthur), a wholly owned subsidiary of Australian mining giant BHP, announced a requirement that all workers at the Mt Arthur mine must be vaccinated as a condition of site entry (Site Access Requirement). The Site Access Requirement required the employees of Mt Arthur to:
- have at least a single dose of an approved COVID-19 vaccine by 10 November 2021, and
- be fully vaccinated by 31 January 2022.
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), which represents about 700 Mt Arthur employees, and the Secretary of the local CFMMEU lodge (the Applicants) then made an application under section 739 of the Fair Work Act 2009 (Cth) seeking that the Commission deal with a dispute in relation to the Site Access Requirement.
The Commission’s jurisdiction to deal with a dispute arises under the Mt Arthur Coal Enterprise Agreement 2019, which confers broad powers on the Commission to resolve this type of industrial dispute by arbitration. Such dispute resolution clauses are mandatory in all enterprise agreements.
The Full Bench noted that employees are only obliged to comply with employer directions that are lawful and reasonable. The Full Bench also noted that reasonableness is “a question of fact having regard to all the circumstances” and rejected Mt Arthur’s proposition that an employer’s direction will always be reasonable when the objective and purpose of the direction is to achieve compliance with statutory and common law duties.
In this decision, the Full Bench held that the following factors weighed in favour of a finding that the Site Access Requirement was reasonable:
- It is directed at ensuring the health and safety of workers of the Mine.
- It has a logical and understandable basis.
- It is a reasonably proportionate response to the risk created by COVID-19.
- It was developed having regard to the circumstances at the Mine, including the fact that Mineworkers cannot work from home and must come into contact with other workers whilst at work.
- The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.
- It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.
However, the Full Bench ultimately ruled that the Site Access Requirement was not a lawful and reasonable direction on the principal basis that Mt Arthur had failed to follow the consultation process required under the work health and safety legislation before introducing the Site Access Requirement.
In arriving at this decision, the Full Bench noted that the employees were not given a genuine opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process relating to the decision to introduce the Site Access Requirement. For example, the Full Bench observed that the email communication that announced the Site Access Requirement – which stated that “the company will introduce a requirement for COVID-19 vaccination as a condition of entry to BHP workplaces” – was demonstrative of the fact that the decision was “irrevocable” and “not amenable to consultation”.
Further, it was found that the employees were not provided with information relating to the reasons, rationale and data supporting the Site Access Requirement. If the Site Access Requirement was introduced after a meaningful consultation process was conducted, the factors listed above would have provided a strong case in favour of a conclusion that the requirement was a lawful and reasonable direction.
What Constitutes Consultation?
Most Australian jurisdictions have harmonised work health and safety legislation that requires consultation over safety issues, requiring in particular:
- that relevant information about the matter is shared with workers, and
- that workers be given a reasonable opportunity—
- to express their views and to raise work health or safety issues in relation to the matter,
- and to contribute to the decision-making process relating to the matter, and
- that the views of workers are taken into account by the person conducting the business or undertaking, and
- that the workers consulted are advised of the outcome of the consultation in a timely manner.
In relation to what constitutes consultation, the Full Bench noted that the requirement to consult affected workers would not be satisfied by providing them with a mere opportunity to be heard. Rather, the requirement involves providing affected workers with an opportunity to be heard and an entitlement to have their views taken into account when a decision is made.
What will constitute a meaningful opportunity to engage in consultation will vary according to the nature and circumstances of the case. The content of a requirement to consult is determined by the precise terms in which the requirement is expressed, the nature of the factual or legal issues and the factual context in which the requirement is exercised, including the particular circumstances of the affected workers.
Despite the fact that an employer retains the right to make a final decision in relation to the introduction and implementation of proposals, consultation must not be a merely formal or perfunctory exercise. The opportunity to engage in consultation “must be a real opportunity, not simply an afterthought”.
Consultation can be of very real value to both employers and employees. A meaningful consultation process can enable the views of affected workers to be put forward. This can assist employers to understand the aspects of a proposal that may produce negative consequences and receive suggestions for ways to eliminate or alleviate those consequences.
Key Action Points for Human Resources and In-house Counsel
In light of this decision, employers are advised to ensure that when introducing and implementing change in the workplace (including, but not restricted to, vaccination requirements for access to the workplace), there is full compliance with obligations regarding the implementation of workplace change. These obligations may arise under an award, an enterprise agreement or under legislation such as work health and safety legislation (and occasionally under a contract of employment), and may include obligations to provide notice of the change or information about the impact of the change, as well as the clear obligation to consult workers. In particular, where the change is related to health or safety, employers should:
- ensure that any directions or requirements to protect the health and safety of employees within the workplace are reasonable having regard to all of the circumstances of their business;
- ensure that they comply with their obligations in relation to directions or requirements regarding workplace health and safety, including considering all applicable industrial legislation and instruments;
- explain the reasons and rationale for the proposed safety requirement; and
- give workers an opportunity to be heard and to have their views taken into account before a decision is made.
Authors: Amy Zhang & Angela Zhang
The COVID-19 pandemic has caused a fundamental shift in the way we work. With many employees continuing to work from home for at least the short to medium term in light of the continuing risks of COVID-19 and government restrictions in various parts of Australia, employers need to remain vigilant in respect to their continuing obligations to workers notwithstanding that they are working from home, and must consider the new and unique workplace challenges that arise as a consequence of employees spending many months away from the physical office.
One common workplace challenge is managing performance issues while employees are working remotely.
Where an employee is not performing to the standard required, employers are entitled to implement a performance management process, notwithstanding that employees have been working remotely and may continue to work remotely for some time.
It is, however, important to have regard to any barriers to performance that have arisen as a result of the need to work remotely, and any other mitigating factors caused by the COVID-19 pandemic. For example, has performance output been affected because:
- of an employee’s reliance on their home internet and computer devices, which may not be as fast or up to date as the office equivalents;
- of difficulty contacting relevant persons;
- an employee has had to manage concurrent caring responsibilities; and/or
- of mental health issues that have been exacerbated by the pandemic (e.g. being isolated from peers and colleagues for many months)?
Failure to have regard to such matters may result in issues for employers down the track, when they seek to rely on such performance issues to justify dismissal.
Where it is or may be necessary to terminate employees who are working remotely, employers should proceed with caution and ensure that procedural fairness continues to be adhered to, to the extent reasonably practicable, to avoid the FWC finding that any dismissal was harsh, unjust or unreasonable due to procedural failures. This includes providing adequate warnings and notice and giving reasonable opportunities to improve performance and respond, as would be the case if an employee was not working remotely. In relation to meetings with concerned employees as part of the performance management and termination process, while this may be a procedural challenge in the context of the pandemic, employers should, to the extent possible, attempt to replicate a face-to-face environment, such as through videoconferencing facilities, if it is not possible to hold meetings in person.
Case in point
The FWC decision Petersen v Allpet Products  FWC 5332 is illustrative of the importance of the above matters.
In this case, the applicant was a Field Sales Executive who worked remotely, and who had, at all relevant times, met or exceeded her sales targets after joining Allpet Products (“Allpet”). In March 2020, with the onset of COVID-19, an additional reporting obligation was introduced on all sales representatives to submit daily sales reports while having their working hours and wages reduced by 20%. After the applicant failed to complete both the daily sales reports and the pre-existing weekly sales run sheets on various occasions, she was called into a performance meeting at the end of the month, and also received a written warning letter in April 2020. Shortly after this incident, a director visited the applicant’s Instagram account and encountered what they believed to be evidence of a private business conducted by the applicant, potentially in competition with Allpet, alongside disparaging comments about Allpet and personal activities allegedly undertaken on the company’s time. Immediately afterwards, Allpet sent a letter by email dismissing the applicant for failing to perform her duties satisfactorily, including by failing to provide weekly sales run sheets in a timely manner and failing to provide satisfactory representation to clients.
At the FWC hearing, Allpet advanced five further reasons for dismissal not disclosed in the termination letter, including the applicant’s failure to meet other reporting obligations in a timely manner, and its findings on the applicant’s Instagram.
In finding that the dismissal was unfair in this case, the FWC opined that although the applicant’s failure to consistently provide reports was indeed a “performance failure” and warranted formal sanction, either through a fairly conducted performance meeting or a fair written warning, “not all performance failures are a valid reason for dismissal. The seriousness of a performance failure requires a consideration of context and circumstance.”
To that end, the FWC considered that Allpet should have considered the impact of the pandemic on the applicant’s ability to perform her duties, and Allpet should have recognised her “natural anxieties about COVID-19” and “all that COVID-19 could mean for her job security” if the business was severely impacted. In particular, “when COVID-19 hit, the combination of reduced hours to do the job, demotivation arising from reduced hours and pay and an additional reporting obligation combined to create a set of circumstances in which an objective assessment of performance was fraught.” Accordingly, with the sudden changes to working hours, pay and job security, performance issues could not be assessed against pre-pandemic work hours and standard performance criteria.
Similarly, with respect to the applicant’s “failure to provide satisfactory representation to clients,” the FWC held that although her occasional shortcomings in interacting with customers warranted a business response, “a handful of errors scattered across months of otherwise productive work” was also not a valid reason for dismissal, particularly in the unorthodox circumstances brought by COVID-19.
The FWC thus concluded that these circumstances, taken together with the “heavy-handed disciplinary approach” adopted by Allpet, meant there were “material mitigating factors” in assessing the seriousness of the applicant’s failures.
Relevantly, the FWC also considered that Allpet’s reasons for dismissal that were not disclosed in the letter were “based on unfair assumptions and scant evidence,” and that the employer had acted unfairly.
The FWC was also critical of procedural defects around the termination, including a failure to provide an opportunity to address or correct the issues, and terminating the employment without notice by email and without even a call or meeting. In particular, the FWC found that Allpet applied an “unfair disciplinary approach” in holding a spur of the moment performance meeting only a week after its unilateral decision to reduce hours and salary, before providing the applicant with a warning letter only two working days after the performance meeting, which was immediately followed by the applicant’s dismissal. The FWC noted that this sequence of events allowed no adequate opportunity to address the issues raised.
The FWC also held that Allpet’s choice to send the termination letter by email, without speaking to the applicant to discuss its reasons, and even instructing the applicant to read the letter before calling, evidenced a “closed mind and an unwillingness to enter into discussion or correspondence on the issue,” rendering it impossible for the applicant to offer any explanation.
Accordingly, the FWC found that the applicant was denied procedural fairness in respect to her termination.
Key Action Points for Human Resources and In-house Counsel
- The above case shows the importance of employers being mindful of the new challenges arising from the pandemic and longer-term remote work, and to take such challenges into consideration when seeking to implement performance management discussions and disciplinary actions.
- It also demonstrates the importance of employers continuing to adhere to their statutory and common law obligations in relation to implementing performance management and termination processes, to the extent reasonably practicable in the context of the pandemic. To the extent it is not reasonably practicable to do so, employers should attempt to replicate existing processes as much as possible, while maintaining an overarching focus on ensuring procedural fairness.
If your business requires assistance with managing performance issues, please do not hesitate to contact our team.
In response to the COVID-19 pandemic, many workplaces have implemented new procedures and policies to prevent and curtail 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:
- undergo regular medical checks, including at the Respondent’s request or direction;
- acquaint herself and comply with the Respondent’s occupational health and safety policies and procedures; and
- 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 ):
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 ):
[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 ):
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.
Harmers Workplace Lawyers has a team of employment law specialists readily available to assist you with these and other workplace issues. For more information, please visit www.harmers.com.au.
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