What role does context play in determining whether a dismissal is unfair?

In determining whether an employee has been unfairly dismissed, the Fair Work Commission must be satisfied that the dismissal was harsh, unjust, or unreasonable. This will involve consideration of a range of pertinent factors, including the validity of the reason for dismissal. Where the alleged conduct of the employee is said to have affected the safety and welfare of other employees, the Commission may find that this is a valid reason for the dismissal.

The Commission may take into account:

• The seriousness of the breach/incident
• The company policies setting out safety procedures and consequences for breaches
• Relevant OH&S training provided by the employer
• Whether the incident was isolated
• Whether or not the employee was a supervisor

In a recent case before the Fair Work Commission Hooshmand v Cater Care Australia Operations Pty Ltd (U2020/4668), an employee was dismissed because they deliberately coughed in the face of a registered nurse who was trying to take his temperature for COVID-19 purposes.

The day before the alleged incident, the employee received an email notifying him that he would need to submit to having his temperature checked prior to commencing work. The company provided detailed guides as to the stringent OH&S requirements in light of the COVID-19 pandemic. The following day, the employee became annoyed that the process was taking too long. When the nurse attended them, the employee coughed and made no attempt to move back, cover their mouth, or apologise.

The Fair Work Commission considered that the action of coughing in the registered nurse’s face was a valid reason for dismissing the employee. The Commission accepted the Employer’s submission that the behaviour of the employee was inconsistent with the expectations of the employer and posed a serious health risk to the residents and employees and was unacceptable in a high-risk environment.

This case is illustrative of the necessity to consider the context in which the conduct takes place. Under ordinary circumstances, coughing in someone’s face, while unwelcome, would arguably not be sufficient to justify a valid reason for dismissal. However, in light of the COVID-19 pandemic, the Commission considered that doing so to a registered nurse at an aged care facility was enough to constitute a valid reason to dismiss.