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October 2020

Employee dismissed after deliberately coughing in nurse’s face

Employee dismissed after deliberately coughing in nurse’s face

The Case

Hedayat Hooshmand v Cater Care Australia Operations Pty Ltd (2020)

Cater Care Australia Operations Pty Ltd (Cater Care) employed Mr Hooshmand as a catering assistant at an aged-care facility known as Uniting Wesley Heights. During the COVID-19 pandemic, it was considered a high-risk workplace for the virus. As such, employees were directed to comply with safety requirements, which included having their temperature taken before commencing work.

As part of the safety training, Mr Hooshmand had signed a statement confirming he must: “Cover your cough and sneeze with bent elbow or disposable tissues and use alcohol-based hand sanitiser. Maintain 1 metre from anyone coughing or sneezing.”

Mr Hooshmand’s employment was covered under the UnitingCare Aged Care Residential & Community Services Agreement (NSW) 2011-2013.

Cater Care alleged that in April 2020, Mr Hooshmand deliberately coughed in the face of a registered nurse when she was taking his temperature before starting work. Mr Hooshmand made no effort to cover his mouth, apologise or move back. After speaking to management, Mr Hooshmand apologised but the nurse indicated it did not appear to be a genuine apology.

Cater Care summarily terminated Mr Hooshmand’s employment. Mr Hooshmand lodged an unfair dismissal claim in the Fair Work Commission (FWC).

Mr Hooshmand argued that the real reason for dismissal was that he had a workers’ compensation injury and was on light duties. Mr Hooshmand maintained he had coughed involuntarily and did not have time to cover his mouth.

The Verdict

The FWC held:

  • the reason for dismissal was valid;
  • the incident was serious given the COVID-19 pandemic, and concerns for the safety of staff and residents in a high-risk environment;
  • Mr Hooshmand had taken no evasive action, and had not immediately apologised nor recognised the seriousness of the matter;
  • the dismissal was not related to Mr Hooshmand’s workers’ compensation claim; and
  • Mr Hooshmand‘s unfair dismissal application should be dismissed.

The Lessons

This decision demonstrates the willingness of the FWC to validate an employer’s safety standards in light of the COVID-19 pandemic. Employees who fail to comply with these reasonable requirements may have difficulty overturning disciplinary action taken in response.

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