Worker says she was only trying to follow state's health mandate
The Fair Work Commission (FWC) has recently decided over the unfair dismissal claim of a Queensland-based worker who was terminated from employment because she “attempted to enforce the wearing of masks” to one of its employer’s clients.
The worker was fired for trying to enforce the state government’s mask mandate, which was an alleged “breach of [her] employer’s policy.” Find out what the FWC has to say in response to the worker’s behaviour.
The worker was a bus driver for the employer’s public transport business. According to records, in September 2021, a young adult male passenger rode a bus driven by the said worker. The passenger did not pay his fare and sat in the seats reserved for disabled passengers. The passenger also had a face mask pulled down under his chin.
The worker asked the passenger to “put his face mask on properly.” The passenger then asked “if it was mandatory.” After being told that it was, the passenger claimed to have an exemption. The worker then asked why he was wearing a mask and if he had an exemption, to which the passenger replied that he had been visiting a friend in day surgery. The worker once again asked the passenger to “please put his mask on.”
The passenger replied, “F*ck off, Karen.” The worker then advised the passenger that he could get off at the next stop for verbally abusing her, but he refused to get off the bus. Afterward, the worker contacted her control room and asked for the police to be called and told the remaining passengers to get off the bus.
After being informed of the incident, the employer wrote a letter to the worker saying that her “wilful or deliberate behaviour” was “inconsistent with the continuation of [her] contract of employment” and that it “had the potential to cause serious risk to the health or safety of yourself and other passengers on board.”
The employer then terminated her employment for serious misconduct.
Was the employee unfairly dismissed for telling the client to ‘wear a mask’?
Among several defences, the worker argued that in response to the COVID-19 pandemic, Queensland Health mandated passengers to wear a face mask on public transport. The worker submitted that the employer “understood” the health crisis.
The worker also submitted that “as a front-line worker, she was entitled to a safe workplace” and required the employer “to provide her with a safe workplace.”
Further, the worker said that she “understood she had a responsibility as a worker to take reasonable care of her own health and safety and ensure her own acts and omissions did not adversely affect the health and safety of other persons.”
Meanwhile, the employer maintained that the worker “was aware of the consequences of her actions” since its Code of Conduct and its procedure “made it clear that unsafe actions are unacceptable.” It argued that she had engaged in “inappropriate behaviour towards a passenger.” It further said that it is “legally obligated to follow its client’s instructions regarding the instructions not to enforce mask-wearing.”
The FWC’s decision
“Had I been a passenger on the bus, then I would have been appreciative of the requests by the worker to the recalcitrant passenger to move his mask from his chin to cover his mouth and nose,” the FWC said in its decision, noting that the worker “is clearly a proud and caring” employee who “loves her job.”
The FWC also said that the worker “did not engage in any activity which could be identified as being ‘enforcement,’ as she “did not refuse to leave the bus stop, did not stop the bus, did not seek to argue the point of the mandate with the passenger, did not seek to leave her seat to confront the passenger, she simply asked him to put on his mask, whilst continuing to drive the bus.”
Thus, the FWC said that the worker had not breached the employer’s policy. The FWC further noted the “Mask Mandate” of the employer’s client. “The mandate says that drivers are ‘not expected’ to enforce the mandate, not that they are prohibited from enforcing it,” the FWC said.
The employer’s actions regarding public safety in a pandemic
As to the employer’s decision to terminate the worker for following the state’s health policy, the FWC said it found it “incredulous that any employer would dismiss an employee for asking a passenger to comply with a government mandate.”
The FWC added that it had “not witnessed any other establishment during this pandemic that does not have the mask wearing signage on the outside of the premises – whether that be an airport, petrol station, retail shop, pub or church.”
“The attitude of the employer in not worrying whether passengers comply with the government mandate during a public health emergency is concerning,” noting that it appears the employer’s “primary concern” was “on-time running” concerning “their benchmarks rather than the safety of their employees and the public.”
Thus, the FWC said there was no valid reason to dismiss the worker. The decision was handed down on 22 April.
