An employee that argued she was ‘effectively dismissed’ or forced to resign, because her employer required her to wear a mask at work and did not accept a medical certificate that wearing a mask made her feel anxious, has had her unfair dismissal claim rejected.

Case Review

The employee, a flight attendant, was subject to a business wide mask mandate that required all staff coming into contact with passengers to be wearing a mask (or face shield) unless medically exempt as part of a critical control measure in response to COVID-19.

In October 2020 the employee submitted a medical certificate stating that wearing a mask made her anxious.  At this time she also outlined to the business that she suffered from Hashimotos disease and a rare bone tumour.  In response to the medical certificate and the communicated conditions, the airline stood the employee down on and conducted a formal investigation as to the capacity of the employee to safely be at work on the basis that such an acute inability to wear a mask would also reflect an inability to perform key elements of the job, such as wearing an oxygen mask in an emergency or a protective fire hood.  The investigation showed that none of the certificates provided outlined any condition or symptom that would prevent mask or shield wearing of any kind.  As a result the airline issued a formal direction to use the PPE provided, including masks, in May 2021.

Following the direction being issued, the employee ceased engaging with the business and “instructed her lawyer to communicate her resignation”.

In her unfair dismissal claim the employee argued that;

  • She had been discriminated against for not being able to tolerate wearing a mask
  • She had been bullied by the airline
  • Standing her down from active duty was an act of aggression and knowingly damaging to her physical and mental health
  • The business failed to conduct scientific studies about the negative impacts of staff wearing masks for long periods of time
  • The policy was not about safety, it was about marketing
  • The application process for an exemption was deliberately and unnecessarily complicated and difficult

And that as a result her resignation was not a resignation, it was forced due to the illegal and unfair conduct of the airline.

Deputy President Nicholas Lake, who heard the case in the Commission, noted that even in the proceedings the employee was unable to provide evidence that she had any medical conditions or symptoms that would medically prevent her from wearing a mask or shield and that in stark contrast to the employees pleadings the actions of the airline were not illegal or unjustified “on the contrary, the evidence before me demonstrates an organisation who attempted to engage in reasonable management action by trying to obtain accurate and specific medical evidence regarding an employee’s medical condition so an assessment could be undertaken as to whether she was fit to work in an safety critical industry”.

The unfair dismissal claim was rejected.

Learnings for all businesses

As the pandemic transitions (again) to “living with the virus” government mandates will be replaced by business controls.  COVID-19 is a risk to the workers and customers of a business like any other risk, to be managed to the same standard.  Just as a service station manages static ignition risk, or the risk of trips, slips and falls, it will be called on to manage the risk of COVID-19.  Further, just like the wearing of gloves is a control mechanism to prevent contamination of food during preparation, masks will remain an important control mechanism for preventing exposure to COVID-19.

As government mandates ease and the virus spreads, all businesses should be reviewing their COVID-19 risk controls, including mask mandates, and communicating directions about risk mitigation to staff.

This case highlights that where the business has a justification for a safety control, and takes reasonable measures to accommodate those who genuinely cannot meet that control where appropriate, that failure to comply with a direction to utilise the control (be that control physical like a mask, or ethereal like a system or procedure) can lead to reasonable termination.

Here to Help

 HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/  for more information.

Elisha Radwanowski BCom(HRM&IR)
ACAPMA

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