'Claustrophobic' employee files appeal against face mask policy

How should HR respond to 'medical-related' accommodation requests?

'Claustrophobic' employee files appeal against face mask policy

An employee has recently appealed against the decision of the Fair Work Commission (FWC) to dismiss her unlawful dismissal claim after she lost her job over her refusal to wear a face mask in the workplace.

Her employer terminated her employment following a dispute over the said policy, arguing that state authorities required face masks to manage the risk of COVID-19 transmissions and its assessment of the risks during the height of the pandemic. The employer asserted that it had a valid reason for dismissal since the employee “could no longer perform an inherent requirement of her job.”

The employer is a not-for-profit association operating a bookshop in Adelaide, South Australia. When the employer required its staff to wear a face mask to follow the health protocols of the South Australian government, the employee argued that she had a medical exemption.

Due to the employee’s failure to comply with the state’s public health direction and the employer’s policy, she was dismissed.

She filed a complaint before the FWC, but the latter favoured the employer. She has since filed an appeal, arguing that the employer’s decision was discriminatory since she had “legitimate and verified medical reasons for refusing to wear a face mask.”

The employee said she suffers from claustrophobia and argued that the employer “unreasonably failed to accept” her medical reason or “make reasonable accommodations” for her. Among other reasons, she said she was dismissed for her “physical or mental disability.”

For her appeal, the FWC dismissed it and favoured the employer. It said that there was a valid ground for her dismissal since she could not fulfill the inherent requirements of her role.

What is discrimination?

According to s 351 of the FW Act:

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Recent articles & video

Court hands employer six-figure fine over apprentice's death

All-time high general protections pay-out ordered for bullied worker

Queensland moves to support female apprentices

What does the new employment service system mean for job seekers?

Most Read Articles

Australian HR Awards 2022: Excellence Awardees revealed

Employees don't want the four-day week – they'd prefer this instead

SEEK salary data shows Australia's fastest growing salaries