By Robby Maygar
The Fair Work Commission (FWC) recently determined that the resignation of an employee of National Jet Systems (NJS), a subsidiary of Qantas, who refused to comply with their employer’s face mask mandate didn’t amount to a constructive dismissal.
Back in October 2020, months before health directives around the country were issued mandating masks to be worn by State and Territory Governments, Qantas implemented an internal policy requiring all cabin crew employees to wear face masks whilst in the workplace.
One of their employees objected to the requirement and obtained a medical certificate explaining that whilst there was “no medical condition of note” the employee “finds she has trouble performing her job safely” and is “extremely anxious” when wearing a mask.
The GP additionally added: “I know of NO convincing research showing any significant benefit from wearing masks, and I doubt the legality of such requirements.”
Given this didn’t amount to evidence of a medical condition, Qantas refused the exemption, however, they did approve the employee to wear a face shield instead of a mask.
Despite this concession, the employee continued to refuse the direction on the basis that no face mask or shield requirement was listed in her contract of employment and that coercion in these circumstances amounted to discrimination based on her pre-existing medical conditions: Hashimoto’s Disease and a benign frontal lobe tumour (conditions which she hadn’t previously disclosed until after her request for an exemption, but even her neurosurgeon claimed that neither condition would preclude ‘her using protective personal equipment’ as necessitated by the employer).
Until this disclosure, the employer had no knowledge of either medical condition, which prompted the employee to be declared unfit for flying duties and being temporarily placed in ‘non-safety critical duties’ until an independent medical assessment could be conducted. The employee ultimately refused to conduct these duties or attend the medical assessment. She was subsequently advised that continued refusal to comply with the mask or shield mandate may warrant terminating the employment relationship.
At this stage, the employee asserted that the direction from Qantas was “onerous and unnecessary” and ultimately amounted to both a repudiation of her employment contract and a constructive dismissal. When the employee didn’t present for her next shift, the employer in turn claimed that the employee had repudiated the contract or resigned from her employment.
After reviewing these facts, Deputy President Nicholas Lake of the FWC declared that the policy requiring masks to be worn constituted a ‘lawful and reasonable direction in the context of the COVID pandemic’, and the willingness Qantas had demonstrated by offering eligible employees exemptions supported this finding.
The FWC found that it couldn’t be said that the employee had no choice but to resign, or was being discriminated against, given that Qantas had suggested a face shield in place of a mask, offered alternate duties, and taken steps towards arranging an independent medical examination to determine whether the exemption sought was legitimate.
“On the contrary,” DP Lake said: “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 a safety–critical industry.”
As a result, the FWC concluded that NJS was entitled to not only implement the policy but to seek clarification where employees could not comply, as this would pose a significant risk to the health and safety of passengers and crew. The constructive dismissal argument failed, and the Applicant was not found to have been dismissed.
In these uncertain times, COVID-safe policies and directions are critical to the safety of an organisation’s workers and customers or clients. It’s to be anticipated that in each business, there may be workers with medical conditions which prevent them from complying with directions, which is why it’s important to have clear policies, a willingness to consider alternative options, and transparent communication so that genuine medical conditions can be accommodated for where reasonable to do so.
The effectiveness of workplace policies and procedures comes down to the drafting and the efforts taken by businesses to consult, train, and compromise with their employees, where reasonable. If you’re in the process of introducing new workplace policies, whether related to the COVID-19 pandemic or not, please get in touch with our 24/7 Telephone Advisory Service.
Not an HR Assured client and need advice about drafting, implementing, or enforcing workplace policies? The team HR Assured can support your business on a range of workplace matters. Contact us today to arrange a confidential, no-obligation chat.
Robby Magyar is a Workplace Relations Consultant at FCB and HR Assured who relishes the opportunity to assist businesses in the best practice approach to managing employees and compliance concerns. He has a particular interest in making employment law and human resources digestible for our clients.