The Fair Work Commission (FWC) recently found that a flight attendant was not forced to resign and that her employer was entitled to make investigations and queries into her medical condition.
In dispute
- Whether the employee was dismissed
- Whether the mask mandate was reasonable
The background
The employee lodged a General Protections Application in the Fair Work Commission (FWC) claiming that she was forced to resign due to her employer’s refusal to accept medical certificates as proof of her entitlement to an exemption from mask wearing. The employee was a flight attendant employed by National Jet Operation Services Pty Ltd (NJOS). NJOS and National Jet Systems Ltd (the named Respondent, NJS) are part of Qantas Group and subject to its policies and procedures. However, both have their own enterprise agreements for the staff they employ – NJOS employs cabin crew whereas NJS employs management.
In reaction to the pandemic, Qantas Group implemented a mask policy in line with public health directives. The employee took leave and provided medical certificates to the employer in support of her claim to be entitled to an exemption from wearing a mask. However, this was not accepted as the evidence did not suggest that she had a medical condition which prevented her from wearing a mask. The employee was directed to return to her work duties and comply with the mask requirement –she was also given the option to wear a face shield instead of a mask. She was also advised that any failure to do so could result in disciplinary action up to or including termination. Additionally, the employee was also given an option to partake in a further investigation to support her allegation that she had a medical condition that exempted her from the mask policy. Following this direction, the employee sent a letter to the employer communicating her resignation and alleging that.
- the employer had not granted any exemptions to employees with respect to masks;
- there was no term in her employment contract that required her to wear a face mask in the course of her employment, nor any term that enables the employer to arbitrarily vary the terms of that contract;
- the mask requirement amounted to a fundamental variation to her employment contract and was unenforceable without her consent;
- the employer engaged in discriminatory conduct after she disclosed that she was unable to wear a face mask, particularly for extended periods.
The decision at trial
In terms of not granting any exemptions, the FWC agreed that the employer was unable to conclude that the employee had a medical exemption as she had refused to cooperate in a further investigation to ascertain her alleged medical condition.
It was held that the employer was entitled to make further enquiries regarding the employee’s medical conditions to ensure that she was fit to work. In justifying the assessment, the FWC placed emphasis on the importantance of preserving the safety and reputational risk of the company.
The FWC was satisfied that the mask mandate was a lawful and reasonable direction that was in line with the public health directions and confirmed that employees are obligated to comply with such directions from their employer. Moreover, it was also evident that the employer had a documented exemption process to cover staff with medical conditions.
The FWC was satisfied that the employee’s resignation was voluntary and that the employer had not engaged in discriminatory or bullying conduct which caused her to resign.
Implications
Employers are entitled to make queries regarding an employee’s medical condition to ascertain whether they are fit to work and especially in ensuring the health and safety of the workplace in the current pandemic environment.
Employers should check whether public health orders are applicable to their industries to ensure that they are discharging their work health and safety obligations to their employees and others. As has been seen throughout the pandemic – work, health and safety obligations will empower a range of action from employers.
Employers should ensure that they have a well-documented exemption process and make sure that alternative PPE or working arrangements are available to staff to prevent claims of discrimination.
