In brief 3 min read
The Fair Work Commission (FWC) recently decided that Qantas' management of a flight attendant who failed to follow a mask mandate was lawful and reasonable, and that she was not constructively dismissed when required to comply with Qantas' directions.
Key takeaways
- Employers need to be satisfied that medical exemption applications from employees are supported by accurate and specific medical evidence.
- Employers should have robust processes and plans in place to manage, assess and investigate exemption applications and non-compliance with COVID-19 related policies and mandates.
Background
The applicant, Ms Watson, was a flight attendant for National Jet Systems Ltd, an entity within the Qantas Group (Qantas). In response to the COVID-19 pandemic and in line with public health directives, Qantas introduced a mask mandate for its cabin crew in October 2020, subject to any medical exemptions that an employee might have.
Ms Watson applied for an exemption on the basis that wearing a face mask made her feel 'extremely anxious', and that she suffered from medical conditions such as Hashimoto's disease and a skull tumour. Qantas considered the exemption application and did not accept that Ms Watson had a medical condition that prevented her from wearing a face mask, but it initially permitted her to wear a face shield instead.
Based on internal medical advice, Qantas determined that Ms Watson was temporarily unfit to perform her duties as a cabin crew member as her inability to wear a face mask also rendered her unable to wear a fire hood or oxygen mask in case of an emergency. Ms Watson was stood down, and invited to an independent medical assessment which she initially agreed to participate in, but ultimately did not attend.
Following an investigation, Qantas concluded that medical certificates provided by Ms Watson did not support any underlying medical conditions that would prevent her from wearing a face mask. She was directed to return to her role and wear a face mask. Ms Watson did not do so. Qantas therefore notified Ms Watson that her failure to attend work had amounted to a repudiation of her employment contract. Ms Watson disagreed and wrote to Qantas stating that the mask mandate amounted to a substantive variation to the terms of her employment contract, and a repudiation of her employment contract. Ms Watson then filed an unfair dismissal application against Qantas in the FWC.
Decision
The FWC decided that imposing a mask mandate was a lawful and reasonable direction in the context of the COVID-19 pandemic, and the relevant risks to health and safety. It was also reasonable for Qantas to determine there was insufficient evidence to satisfy itself of Ms Watson's inability to wear a mask.
In the absence of providing sufficient evidence on her medical conditions, Qantas' direction to Ms Watson to return to work and comply with the mask mandate was a lawful and reasonable direction that did not amount to a repudiation of her employment contract.
Therefore, it did not follow that Ms Watson was constructively dismissed by Qantas. Instead, the FWC decided that Ms Watson had freely resigned from her employment and that she had not been put in a position where she had no choice but to resign.