Can I fire an employee for refusing to wear a facemask?

Worker claimed mandate was unlawful and affected her mental health

Can I fire an employee for refusing to wear a facemask?

The Fair Work Commission has shot down a Qantas flight attendant’s claim that she was forced to resign due to the airline’s mandatory face mask policy. Although the flight attendant asserted that she was medically excused from the policy, the Commission ultimately sided with the airline, finding that the mandate was a lawful and reasonable direction and that the flight attendant did not demonstrate a medical inability to comply.

The worker was employed as a flight attendant with National Jet Operation Services, a subsidiary of Qantas, having commenced her employment in January 2013. In October 2020, on advice from its medical team, Qantas Group mandated wearing face masks for all customer-facing employees, including cabin crew. The flight attendant sought an exemption from the mandate, providing a medical certificate that wearing a mask would cause her extreme anxiety and “trouble performing [her job] safely”.

In January 2021, the flight attendant was photographed performing duties without a face mask by a passenger. The head of cabin crew subsequently alerted the flight attendant of the passenger’s complaint and offered her to wear a less-restrictive face shield instead.

After several months of correspondence, the flight attendant resigned from her employment. She applied to the Fair Work Commission, contending that she was forced to resign and was, therefore, “constructively dismissed” by the airline.

The Hearing

The flight attendant claimed that the mandate was unlawful, a breach of her employment contract, and a form of discrimination.

Through her lawyer, the flight attendant put forth several submissions, including that she was bullied and harassed, that the airline disregarded her physical and mental health, safety, and rights as an employee, and that the mandate amounted to a “fundamental variation of the contract” and was therefore unenforceable without her consent.

In contrast, the airline submitted that the mandate was a “lawful and reasonable direction”, which did not constitute a variation of the flight attendant’s employment contract. It also asserted that the flight attendant’s medical evidence did not address or satisfy the airline that she was medically excused from the mandate.

Judgment

The Commission sided with the airline, finding that the mandate was a “lawful and reasonable direction in the context of the COVID pandemic”. The Commission also commented that the airline’s conduct did not reasonably leave the flight attendant with no choice but to resign. Instead, it found that the flight attendant evaluated her options and made a conscious decision to resign from her employment.

The Commission dismissed the flight attendant’s application.

Key Takeaways

  • An employer may direct an employee to wear a face mask if the direction is “lawful and reasonable”
  • Employees owe a duty to comply with lawful and reasonable directions
  • Although employees may be excused from complying with mandatory face masks due to a medical condition, the case above demonstrates that the Fair Work Commission will not accept all medical evidence for this purpose

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