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May 2021

FWC enforces employer’s COVID-19 direction

FWC enforces employer’s COVID-19 direction

The Case

Fesshatsyen v Mambourin Enterprises Ltd (2021)

Membourin Enterprises Ltd (Membourin) employed Ms Fesshatsyen as a disability support worker. During the COVID-19 pandemic, Membourin introduced a procedure requiring all employees to check their temperature before commencing work. Any employee whose temperature was over 38 degrees was required to leave work, isolate at home, or attend a medical centre and notify Membourin.

On 10 June 2020, Ms Fesshatsyen tested her temperature when arriving at work. The first reading was unusually low, so she repeated the test, which returned a reading of 38.5 degrees. Ms Fesshatsyen did not follow the procedure and remained at work.

Membourin undertook an internal investigation and Ms Fesshatsyen was given an opportunity to respond. She was warned that her failure to follow a lawful and reasonable direction may result in the termination of her employment. Ms Fesshatsyen argued that she had stayed at work because she was not sick, the instrument was faulty. Membourin thereafter summarily terminated Ms Fesshatsyen’s employment.

Ms Fesshatsyen lodged an unfair dismissal claim with the Fair Work Commission (FWC).

The Verdict

The FWC held that Membourin’s response in terminating Ms Fesshatsyen’s employment was a proportionate response to her failure to follow a lawful and reasonable direction to comply with the COVID-19 procedure. The FWC found the dismissal was valid considering the seriousness of the breach, and Ms Fesshatsyen’s lack of contrition and insight into her actions. The FWC dismissed Ms Fesshatsyen’s unfair dismissal application.

The Lessons

The decision demonstrates that the FWC is willing to enforce lawful and reasonable directions, such as those associated with COVID-19, where the gravity of the breach for work health and safety is great.

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