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We all wear masks: lawful and reasonable directions during a pandemic

Libby Pallot, Walter MacCallum, Anthony Massaro, Ben Tallboys, Abbey Burns, Natasha Sim, Morgan Smithe & Jeremy Tran

In a recent decision, Watson v National Jet Systems Ltd [2021] FWC 6182, the Fair Work Commission has found that it was lawful and reasonable to require staff to wear a face mask, even in the absence of a health direction mandating masks.

Background

In response to the COVID-19 pandemic, on 26 October 2020 a Qantas Group subsidiary announced that cabin crew were required to wear face masks when performing duties. This direction preceded State Government health directions which mandated the wearing of face masks.

Ms Watson applied for a medical exemption with a medical certificate from her GP, stating that although she had “no medical condition of note” face masks made her “extremely anxious, and she finds she has trouble performing [her job] safely”. The GP requested that Ms Watson not be required to wear a mask at work. 

Ms Watson also disclosed that she suffered from Hashimoto’s Disease and a benign frontal lobe tumor. Her neurosurgeon stated that “she has had issues with face masks and shields at work due to headaches”, but “there are no medical restrictions to her using whatever protective personal equipment is necessary”.

In response to this information, Qantas booked an independent medical examination to determine whether Ms Watson was able to perform her role safely and offered her “non-safety critical duties” in the interim. She refused both. Qantas then directed Ms Watson to return to her flying duties in May 2021, whilst complying with the mask mandates, indicating that otherwise Ms Watson risked being dismissed.

The day before Ms Watson’s scheduled return to work, her lawyer submitted that there were no terms in her employment contract mandating the wearing of face masks without her consent. Additionally, it was alleged that Ms Watson’s inability to safely wear a face mask meant that mask mandates were “onerous and unnecessary and amount[ed] to a repudiation” of her employment. This was said to leave Ms Watson no choice but accept the “termination of her employment contract, effective immediately...amount[ing] to a constructive dismissal”.

Decision

Ms Watson subsequently made an unfair dismissal claim. In dismissing that claim, Deputy President Lake determined that Ms Watson chose to voluntarily conclude her employment.

In arriving at this conclusion, Deputy President Lake found Qantas’ mask mandate to be a “lawful and reasonable direction in the context of the COVID Pandemic”. Had the mandate been implemented without an exemption process in place for those staff who could not, for medical reasons, wear masks while conducting their duties, Deputy President Lake indicated he may have reached a different conclusion. However, Qantas had a clearly documented exemption process.

Deputy President Lake held that Ms Watson was not dismissed; rather, she resigned. Qantas had provided Ms Watson with a “number of options”, being either to return to work and follow the mask mandate, or attend an independent medical examination. Ms Watson made a choice by refusing both options, and she did not suffer discrimination.

Contrary to Ms Watson’s submissions, Deputy President Lake found that Qantas also acted reasonably in seeking accurate medical evidence to determine whether Ms Watson was fit for work. It was no longer an issue simply relating to whether Ms Watson could wear a face mask, but extended to her ability to wear “various facial coverings… in the event of an emergency”. Allowing Ms Watson to return without the appropriate tests could have led to greater reputational and safety risks for Qantas.

Lesson for Employers

During a time where employers are adapting to evolving health directions, it can be difficult to understand what you as an employer can lawfully and reasonably direct employees to do. 

Whilst it will be lawful and reasonable to ensure employees comply with applicable health directions, in many circumstances it will be reasonable and necessary to impose additional obligations on employees to ensure health and safety.

How we can help

For more guidance on how to manage arrangements in your workplace, please contact Russell Kennedy’s Workplace Relations, Employment and Safety Team.

If you would like to keep in touch with Alerts and Insights from our Workplace Relations, Employment and Safety team, you can subscribe to our mailing list here.

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