To mask or not to mask? Employer succeeds in defending mandatory mask requirement

In a recent case before the Fair Work Commission, a flight attendant’s employment came to an end due to her refusal to wear a face mask. The case of Watson v National Jet Systems Ltd [2021] FWC 6182 holds useful lessons for employers implementing mandatory mask wearing policies in response to the risks of the COVID-19 pandemic. This case also has implications within the mandatory vaccination context as well.

Background

Ms Jessica Watson was a flight attendant employed by National Jet Operations Services Pty Ltd (National Jet) on Qantas flights.

On 26 October 2020, a direction was issued to cabin crew requiring them to wear face masks while performing their duties. An employee would only be exempt from this requirement if they had a valid health exemption.

Ms Watson initially claimed that she was entitled to rely upon such an exemption. However, when National Jet requested that she attend an independent medical examination, Ms Watson refused and argued that this was an unlawful request.

After several months of not performing duties, Ms Watson’s employment came to an end. The views of the parties differed as to how this occurred. Ms Watson was of the view that she had been constructively dismissed from her employment while National Jet considered her as having resigned.

Ms Watson then proceeded to file a general protections claim in the Fair Work Commission.

The question before Deputy President Lake was whether Ms Watson had in fact been constructively dismissed from her employment.

Whether a dismissal has occurred?

In order for her claim to succeed, Ms Watson needed to demonstrate that she had been “dismissed” within the meaning of section 386 of the Fair Work Act 2009 (Cth). Relevantly for this case, section 386 provides that a person has been dismissed if “the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

Deputy President Lake ultimately agreed with National Jet that Ms Watson resigned from her employment and for this reason Ms Watson’s claim was dismissed. While this case is instructive on the ‘resignation’ and ‘constructive dismissal’ distinction, it also has a number of useful takeaways for employers implementing policies in response to the risks of COVID-19.

Whether a requirement to wear a mask was a lawful and reasonable direction?

Deputy President Lake firstly considered whether the mask wearing requirement was a lawful and reasonable direction. As the direction involved no illegality and fell reasonably within the scope of service of the employee, the Deputy President concluded that the direction was ‘lawful’.

The Deputy President was also of the view that the mask mandate was ‘reasonable’ as a control measure against the risks of COVID-19. However, it was noted that a different conclusion may have been reached if the mask wearing requirement was implemented without a medical exemption in place.

Whether an employer can require further information of an employee before granting a medical exemption to a mask wearing policy?

Ms Watson provided National Jet with medical certificates that she asserted demonstrated her entitlement to an exemption from the mask wearing mandate. While the medical certificates raised a number of medical conditions they did not, in National Jet’s view, preclude Ms Watson from wearing a face mask or in the alternative a face shield.

Given the concerns raised by Ms Watson about the wearing of a face mask or face shield, she was directed to attend an independent medical examination. Ms Watson ultimately refused to attend the appointment arguing that National Jet had no lawful basis to direct her to attend.

Deputy President Lake found that National Jet had acted appropriately when directing Ms Watson to attend the examination. National Jet persuasively argued that air crew may need to wear masks in a variety of circumstances such as during emergencies or when dealing with dangerous chemicals as part of the inherent requirements of the role. For this reason, National Jet acted lawfully and reasonably when directing the employee to attend this appointment.

Whether a refusal to grant an exemption amounts to a constructive dismissal?

Ms Watson attempted to argue that National Jet’s refusal to grant her an exemption to the mask wearing requirement resulted in her being constructively dismissed from her role. Instead, the Deputy President found that Ms Watson had resigned from her role without being forced or coerced to do so.

Whether a person has been constructively dismissed from their role will ultimately depend upon the facts of the case. However, an employee resigning to avoid complying with a lawful and reasonable direction will be unlikely to amount to a constructive dismissal.

For the employer to consider

As government mandated COVID-19 related restrictions are relaxed, the burden will increasingly shift towards employers to manage the risks of COVID-19 in the workplace. In certain circumstances, it may be necessary and appropriate to introduce a mandatory mask wearing or vaccination policy.

Prior to the implementation of such policies, employers should give careful consideration as to whether there will be exemptions to these policies and how they will be facilitated. Employers will also need a clearly defined process for requesting further information about an employee’s exemption request.

Employers should also plan for how to respond to employee refusals to comply with such a policy. In this case, National Jet benefited immensely from clearly communicating to Ms Watson the requirements of the policy and the progress of her request for an exemption.

While National Jet was successful in this matter such success was clearly the result of careful planning and an appropriately drafted policy. To ensure that your business is similarly protected, speak with NRA Legal today.

For assistance contact NRA Legal on 1800 572 679.

By Andrew Piper and Lindsay Carroll