In the aftermath of Covid-19, a harsh reality riddled with strict public health orders and convoluted work, health and safety mandates have left employers scratching their heads. Recent case law has emerged in the unfair dismissal space that highlights the paradox between non-compliance with legislation versus non-compliance with loosely drafted workplace policies.

The Fair Work Commission has increasingly scrutinised employers for harshly dismissing employees for breach of workplace policies that are poorly drafted or sparsely enforced in the workplace. In the recent matter of Angela Daddona v Menarock Aged Care Services Pty Ltd [2022], Ms Daddona was summarily dismissed for breaching their work, health and safety policy by wearing her mask below her nose when delivering food to her patients.

Ms Daddona was observed by an auditor from the Aged Care Quality and Safety Commission wearing her PPE gear incorrectly. Shortly after, she was required to attend a disciplinary meeting where she explained that she only lowered her mask because residents with hearing disabilities could understand Ms Daddona better that way, and that this was common practice at the facility.

Although the Fair Work Commissioner determined that aged care residents had a
“special vulnerability” to Covid-19 warranting staff to always wear PPE gear correctly, the worker’s conduct did not amount to serious misconduct due to the weak enforcement of their work, health and safety policy and haphazard approach to disciplinary action. For example, it was common practice for the facility to spot check and remind workers to pull their masks up, rather than imposing an instant dismissal or formal performance management.

It was therefore determined that:

  • Ms Daddona’s conduct did not cause serious and imminent risk so as to constitute serious misconduct per reg 1.07 of the Fair Work Regulations 2009 (Cth);
  • it was not established that Ms Daddona ‘refused’ to wear a mask properly, rather it was simply a failure to wear her mask on a few occasions;
  • the employer failed to enforce an active compliance culture to justify that Ms Daddona could reasonably suspect that breaching this term of the work, health and safety policy may constitute a valid reason for dismissal (s 387(a) Fair Work Act 2009 (Cth));
  • Ms Daddona was not afforded procedural fairness given that it was clear that the employer decided to terminate her employment regardless of her response; and
  • summary dismissal was a harsh and disproportionate penalty for the gravity of misconduct alleged.

Ms Daddona was awarded with five (5) weeks’ compensation discounted by ten percent (10%) for her misconduct.

It is imperative that employers stop ‘turning a blind eye’ to workplace misconduct by adopting living, breathing policies and procedures that are reinforced through an active culture of compliance.

Employers can reduce exposure to vicarious liability claims from third parties and minimise risk to unfair dismissal claims by demonstrating that they have taken reasonable steps to prevent non-compliance, including having current policies that do not collect dust in a bottom drawer and are reinforced through thorough training.

Don’t foster a workplace culture of ‘turning a blind eye’ and contact our workplace law team today. Contact Chamberlains Law Firm to prepare updated workplace policies and procedures, advise on consultation and implementation, and facilitate on-site training.