Coughing in co-employee’s face is a valid reason for dismissal

Case background

A catering assistant worked part-time at an aged care facility that had 121 elderly residents who were either receiving palliative care or considered in a high-risk state of health. He had been working at the aged care facility since 2013 but because of the Covid-19 pandemic, he worked part-time and was considered a contractor.

New hygiene protocols in the workplace implemented

Because of the pandemic, all employees of the aged-care facility had been given a strict new health protocol for the staff to observe to minimise the risk of spreading the Covid infection to the aged residents. The strict new protocol specifically instructed employees to sneeze or cough into their bend elbow and to maintain one metre away from anyone if they needed to cough or sneeze. The catering assistant signed the copy of the protocol sent to him electronically. On 27 March 2020, he was instructed to present himself to the staff of the aged care facility for a temperature check prior to starting his shift for the day on 27 March 2020. His temperature was taken by a registered nurse at the facility.

Employee failed to abide by the hygiene protocol

The catering assistant was annoyed that he had to get his temperature checked before beginning work. He was frustrated and stated as much to the nurse that the process of checking his temperature was taking too long. He coughed in the face of the nurse taking his temperature. The nurse was not wearing personal protective equipment at the time. According to the nurse, the catering assistant did not even cover his mouth or move back before coughing. And after the catering assistant coughed, he did not even apologise. Only after the nurse reported the incident and the catering assistant was instructed to apologise did the catering assistant apologise to the nurse. The nurse felt that the catering assistant’s apology as not sincere because he had a smirk on his face.

Employee claimed coughing was not deliberate

The catering assistant admitted that he did cough at the nurse while the nurse was taking his temperature but that he did not cough deliberately. He said that he had to cough suddenly and that he had no time to step back or to cover his mouth. He also said that he did not open his mouth as he coughed. He claimed that his dismissal had no reasonable of valid basis. He also claimed that he was dismissed because he was doing light duty because he was on worker’s compensation.

Notice and hearing provided to employee prior to dismissal

The employer called the catering assistant to a meeting on 27 March 2020 to inform him of the allegations against him. He was called to another meeting on 30 March 2020 where he was given the opportunity to present his side. He was dismissed from his employment after a show-cause meeting on 30 April 2020 as his actions were against the protocol in force at the facility. His actions were taken to be reckless as the catering assistant could have been a Covid-19 carrier and his coughing in the nurse’s face could have caused an outbreak in the facility.

Whether cough was deliberate or not, still a breach of employer’s orders

In determining the question of whether the dismissal was based on a valid reason, the Fair Work Commission did not think it necessary to determine whether the action was deliberate as the employer claimed or whether the cough as involuntary as the catering assistant asserted. What was important was that the catering assistant knew the risk of coughing in the face of another employee; that I was a breach of the known hygiene procedures in the workplace during a pandemic; that his behaviour increased the risk of infection among the employees and the residents. The catering assistant knew fully well that the facility was a high-risk environment. He knew his employer’s expectations. His employer was expecting that he would not pose a potential serious health risk to the residents or the employees. The catering assistant’s application for unfair dismissal was dismissed.

Hedayat Hooshmand v. Cater Care Australia Operations Pty Ltd [2020] FWC 4371 20 August 2020