Sacked for coughing at a nurse during a COVID temperature check

What happened

Mr Hooshmand had worked for Cater Care since August 2013. By 2020 he was a part-time catering assistant at Uniting Wesley Heights, an aged care home in Sydney where Cater Care provided the catering. The home had 121 residents, many of them considered high risk and some in palliative care.

In March 2020 COVID-19 had just reached Australian workplaces. Cater Care gave its staff a safety tool box talk on the virus, which told them to cover a cough or sneeze with a bent elbow or a tissue and to keep a metre from anyone coughing or sneezing. Mr Hooshmand signed the acknowledgement on that document. From 27 March 2020 the home closed to visitors and required the caterer's staff to have their temperature checked; early morning staff had to go to the nursing home to be checked by a registered nurse.

On that first day, while the nurse held a thermometer near his forehead, Mr Hooshmand coughed. The nurse said he coughed straight at her with his mouth open, did not step back or cover his mouth, and did not apologise. She was not wearing any protective equipment. He apologised a couple of hours later, after his manager told him to, but she felt the apology was not genuine.

The home's management told Cater Care that Mr Hooshmand was no longer to work at the site. After a meeting on 30 March 2020, where his son acted as his support person, Cater Care dismissed him on 3 April 2020.

The claim

Mr Hooshmand applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). He represented himself, with an interpreter provided by the Commission.

He accepted that he had coughed during the temperature check but said it was involuntary and too sudden to cover his mouth, that his mouth was closed, and that the nurse took up to five minutes over the check. He also said the real reason for his dismissal was that he had a workers' compensation injury and was on light duties.

Why: the legal test

A dismissal is unfair if it was harsh, unjust or unreasonable. To decide that, the Commission must weigh the factors in s 387 of the Act. The first is whether there was a valid reason for the dismissal related to the worker's capacity or conduct, including its effect on the safety and welfare of other employees. The others look at the process: was the worker told the reason, given a chance to respond and allowed a support person, along with anything else relevant, such as length of service and the effect of the dismissal on the worker.

Where the worker denies the conduct, the Commission decides for itself what happened. Here only Mr Hooshmand and the nurse were present, so the case came down to whose account Deputy President Bull believed.

What the Commission decided

The Deputy President preferred the nurse's evidence. She was not employed by Cater Care, had no stake in the outcome, and gave her evidence in a "compelling and cogent manner". He did not accept that Mr Hooshmand's mouth was closed or that the check took five minutes, and found that the apology came only when Mr Hooshmand was told to give one. That conduct was a valid reason for the dismissal.

The Deputy President did not need to settle whether the cough was deliberate. Either way, Mr Hooshmand gave no plausible explanation for not turning his head, covering his mouth or moving away, which could have happened in a split second. Together with his failure to apologise straight away or to see at once that he had breached known hygiene rules in an aged care home during a pandemic, that made the incident far more serious. The conduct posed a potential serious health risk to residents and staff.

The Deputy President found that Cater Care had, by and large, followed proper procedure. Mr Hooshmand was told the reason, had a chance to respond with a support person present, and had 24 more hours to add anything. The Deputy President weighed his long service, his difficulty with English and his limited job prospects, but found the dismissal was not related to his workers' compensation claim. The application was dismissed.

What this means for you

Health and safety rules carry extra weight in high-risk workplaces such as aged care, hospitals and disability services. A single incident with no prior warning can be a valid reason for dismissal if it puts vulnerable people at risk, and signed training can be used to show you knew the rules.

If you are accused of breaching a safety rule, how you respond matters as much as what happened. An immediate, genuine apology and a clear account of what you did to avoid harm can count for a lot. If you think the real reason for your dismissal was an injury or a workers' compensation claim, get advice early about a general protections claim. Either kind of claim must be lodged with the Fair Work Commission within 21 days of the dismissal.