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The evolving employment landscape amidst COVID-19 – Employment Solicitor, Harry McDonald discusses unfair dismissal

COVID-19 has impacted our working lives in many ways. Some employers mandated vaccinations, some mandated masks. However COVID-19 impacted your workplace, there have undoubtedly been policies implemented to minimize the risk of COVID-19. This has resulted in a spike of unfair dismissal claims against employers.


What is ‘unfair dismissal’?

An employee is ‘dismissed’ if their employment is terminated, or, the employer has forced the employee to resign. An employee will have an unfair dismissal claim if the Fair Work Commission finds the dismissal ‘harsh, unjust or unreasonable’ and the dismissal was not a case of genuine redundancy. When considering whether a dismissal was ‘harsh, unjust or unreasonable’, the FWC will take into account several matters, including the following:

  • Whether there was a valid reason for the dismissal. The FWC will consider how the conduct effects the safety and welfare of other employees and customers. A dismissal may be valid if the employee fails to comply with a lawful and reasonable workplace policy (for example, a COVID-19 policy);
  • Whether the employee was notified of that reason;
  • Whether the employee was given the opportunity to respond to the conduct; and
  • Whether the dismissal related to unsatisfactory conduct.

The FWC has wide discretion to determine if a dismissal was ‘harsh, unjust or unreasonable’. If the FWC finds a dismissal was unfair, they can order the employer to compensate the employee and/or reinstatement of employment. Many employers have raised concerns about how COVID-19 may expose them to liability of unfair dismissal.


COVID-19 policies and unfair dismissal

In a recent case, the FWC found an employee’s failure to comply with a COVID-19 policy was a valid reason for dismissal. In response to the COVID-19 pandemic, a disability support services provider introduced a policy requiring employees to record a temperature of 38 degrees or below prior to commencing their shift. If the employee recorded a temperature above 38 degrees, they were required to immediately leave the site, either go home or go to a medical centre and notify management.

In June 2020, an employee remained at work for the day despite that she had recorded a temperature of 38.5 degrees. The employee was given an opportunity to respond to the conduct, which she advised she did not comply with the policy because she knew she was not sick and accused the temperature reading device to be faulty. She was later dismissed for failing to follow the policy.

When considering whether the dismissal was unfair, the FWC acknowledged the terms and conditions of employment as well as the governing enterprise agreement. The governing enterprise agreement was drafted accordingly to oblige the employee to comply with the company’s health and safety policies. Based on this, the FWC found that a failure to adhere to the COVID-19 policy was a valid ground of dismissal. The claim was dismissed as the non-compliance caused a serious risk to the health and safety of employees and customers. The FWC made it clear they take breaches of COVID-19 policies seriously.

A similar perspective has been taken around the world. For example, in Germany, it was found that a failure to socially distance was a valid ground for dismissal. In the United Kingdom, it was found that failing to wear a face mask was a valid reason for dismissal.


How can employers protect themselves against an unfair dismissal claim?

Recent cases suggest that employers can confidently introduce COVID-19 policies. However, it is important to ensure the policies are drafted to adequately protect employers from an unfair dismissal claim. Employers are often unaware of the powers and protections that correctly drafted Workplace Health & Safety policies can provide to employers. If you are considering implementing COVID-19 policies in your workplace, you should seek legal advice in relation to drafting these policies to minimize the risk of unfair dismissal claims.

If your workplace is having issues with employees complying with COVID-19 policies, you should seek legal advice before taking any action.

Call our office on 07 5444 1022 to discuss with one of our employment lawyers today.


By Harry McDonald

Harry McDonald is a solicitor admitted to practice in the Supreme Court of Queensland, practising in the Commercial and Property Law team at Greenhalgh Pickard Solicitors. Within commercial law, Harry has a keen interest in employment law and enjoys assisting commercial clients in all areas of their employment & industrial relations with experience in employment contracts, sub-contractor agreements, restraint clauses, unfair dismissals, general protections, workplace policies and guidelines and general HR advice.