17 November 2021
6 min read
#Workplace Relations & Safety, #COVID-19
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The COVID-19 pandemic has again tested the bounds of established principles in the employment law space. This time, in Jessica Watson v National Jet Systems Ltd [2021] FWC 6182, the Fair Work Commission (FWC) was required to determine whether or not a direction that cabin crew wear a mask while flying was lawful and reasonable. If it weren’t, the FWC was also required to determine whether the employee was constructively dismissed in circumstances where she refused to follow that direction and resigned on that basis.
The employee was engaged as cabin crew by her airline employer. In October 2020, in response to the increased risk of COVID-19 infection, the airline mandated face masks for all cabin crew – and customer-facing employees – when performing duties, under its own policy. The mask mandate was introduced before the mandatory mask requirements were imposed by various public health orders across Victoria, NSW and Queensland by around January 2021.
The airline’s mandatory mask policy included a comprehensive exemption process.
The employee sought an exemption from wearing a face mask shortly after it was mandated, and by January of this year, the airline allowed her to wear a face shield instead. The employee obtained a medical certificate that stated she should not be required to wear a face mask at work because it made her anxious. However, the medical certificate also stated that the employee had “no medical condition of note”. The airline’s medical branch rejected her medical certificate because it did not accept that she suffered from a medical condition that made it unsafe for her to wear a face mask while working.
By February of this year, the employee’s legal representatives asserted the airline’s mask mandate amounted to a non-consensual variation to the employee’s employment agreement. In response, the airline argued the mandate was simply a lawful and reasonable direction. It further contended that, even if the direction were ‘new’, it did not amount to a variation to the employee’s employment agreement, but was instead the exercise of a power or right held by the airline under her employment agreement.
Deputy President Lake of the FWC confirmed that the airline’s mask mandate was a lawful and reasonable direction in the context of the COVID-19 pandemic. Further, it rejected the employee’s submissions that she was constructively dismissed, bullied, harassed or discriminated against by the airline.
Why was the direction lawful and reasonable?
DP Lake reiterated the settled principles of lawful directions:
In relation to reasonableness, DP Lake referred to Woolworths Ltd v Brown (2005) 145 IR 285, in which the court set out the following considerations:
In light of these principles, the FWC held that the airline’s requirement that cabin crew wear face masks to mitigate the spread of COVID-19, and the consequences associated with the contraction of COVID-19, was a lawful and reasonable direction.
Nevertheless, DP Lake found the airline’s exemption process material in determining the mask mandate was a lawful and reasonable direction. Absent that exemption process, DP Lake stated that his conclusion might have been different.
Constructive dismissal
The employee claimed the mask mandate was an unlawful and unreasonable direction, discriminatory, and accordingly, repudiated her employment agreement. On that basis, she claimed she had no alternative but to accept the repudiation and terminate her employment agreement. This was set out in a letter to the airline.
By response letter, the airline asserted the employee’s employment agreement remained on foot. It suggested the employee confirm whether she wanted to resign; her letter indicating that she no longer wished to remain employed. The airline also stated that if the employee did not resign, she would need to attend an independent medical examination (IME) to determine whether she had a medical exemption preventing her from wearing a face mask.
DP Lake agreed that the airline’s letter did not dismiss the employee, constructively or otherwise. The employee’s resignation occurred on her own accord.
Constructive dismissal claims at common law are notoriously difficult to establish. In short, they require employees to demonstrate that their employers’ conduct would be likely to bring the employment relationship to an end. It is insufficient for employees to simply show they did not voluntarily leave their employment.
The employee was unable to satisfy this threshold. The FWC confirmed the employee had the following options:
DP Lake concluded the employee evaluated the options available to her and opted for the last. Accordingly, the employee’s general protections application was dismissed.
There are now various State public health orders mandating or requiring certain employers to ensure, as far as reasonably practicable, that employees wear face masks at work. Employers must observe those orders. If an employee simply refuses to wear a mask for no valid reason, they risk being lawfully dismissed, and depending on the jurisdiction, may even face criminal prosecution.
In any event, employers must take care that any mandatory mask requirements are given proper consideration to the particularities of their workplace, the risk of exposure to COVID-19, and any medical exemptions evidenced by employees.
In this case, the following factors were viewed favourably by the FWC when determining whether the employee was given a lawful and reasonable direction, and was not constructively dismissed:
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Authors: Charles Power & Stefania Silvestro
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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