Wednesday, 26 August 2020

Deliberate coughing leads to fair dismissal

In a recent matter, the Fair Work Commission ("FWC") had to consider whether, in circumstances where an employee coughed deliberately in the face of a nurse, dismissal was fair.

The employee, a Catering Assistant, had worked for Cater Care Australia Operations Pty Ltd ("Cater Care") for over six years. He was based at an aged care facility called Uniting Wesley Heights where his employer provided catering services. Uniting Wesley Heights is home to 121 residents, most of whom were considered high risk.

COVID-19 safety measures

On 10 March 2020, Cater Care employees received training on preventing the spread of COVID-19. The employees were given guidance on new strict hygiene protocols. In particular, they were told to "(c)over (their) cough and sneeze with bent elbow or disposable tissues and use alcohol-based hand sanitiser. Maintain one metre from anyone coughing or sneezing."

On 26 March 2020, the aged care facility had written to Cater Care informing the company that from 27 March 2020, Uniting Wesley Heights would be closed to all visitors and that Cater Care staff would be required to have their temperature checked by a registered nurse before they could commence work.

Temperature check

On arrival for work on 27 March 2020 the employee was requested by the Chef to get his temperature checked. The registered nurse, held out her arm and aimed the thermometer a few centimetres from the employee's forehead. As she did this, the employee coughed deliberately in the nurse's face. The employee did not cover his mouth, did not move back from the nurse and did not even offer an apology. The nurse was understandably upset by this brazen conduct and reported the incident. A few hours later, the employee apologised to the nurse but the belated apology did not come across as genuine.

The employee was invited to a show-cause meeting on 30 March 2020 which he attended with a support person. He was given the opportunity to respond to the allegation that the employee coughed deliberately in the nurse's face.

Following this meeting, Cater Care dismissed the employee on 3 April 2020.

Unfair dismissal claim

The employee brought a claim in the FWC alleging unfair dismissal. The employee argued that:

  • he had coughed involuntarily;
  • it was too quick for him to cover his mouth when he coughed;
  • he did not actually open his mouth when he coughed;
  • the nurse did not appear angry at the time;
  • he apologised to her later; and
  • the real reason he had been dismissed was because he had a workers' compensation claim and had been put on light duties.

The FWC considered the employee's length of service and his future job prospects which appeared limited. However, Deputy President Bull agreed with Cater Care that "such behaviour is unacceptable in a high-risk environment such as the applicant's work site and that it would be untenable for him to continue in his employment in such an environment." The FWC found the nurse to be a credible witness and accepted that she was concerned for her own health and that of the vulnerable residents. It was found that Cater Care had a valid reason for dismissing the employee and it was unrelated to his workers' compensation claim. The employee coughed deliberately in the nurse's face and such conduct posed a potential health risk.

New research – fever is the first symptom

It is interesting to note that new research from the University of South California has found that the symptoms of COVID-19 display in a specific order. The study which covered more than 55,000 confirmed cases of COVID-19 concluded that often the first symptom is a fever, followed by a cough and then nausea or vomiting and diarrhoea. The researchers go on to suggest that people with influenza first observe a cough, not fever. This evidence may provide further support for those employers who are making temperature checks mandatory at the workplace.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Sourced from: People + Culture Strategies, by Kate Staude Deliberate coughing leads to fair dismissal (24 August 2020) 

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