A Sydney-based employee was recently fired by his employer for non-compliance to COVID-19 safety protocol. The Fair Work Commission (FWC) upheld the employer’s decision for several reasons, one being the employee was “utterly unrepentant” about the misconduct and his beliefs about the pandemic made him “impervious to directions and warnings from management”.

Reportedly, the employee, a motor mechanic, knew about the government travel restrictions but intentionally did not comply because he considered them “unconstitutional and believed that the pandemic was a scam”.

Further, given he was exempted from wearing a mask, his employer accordingly put in place safety requirements, including disallowing the employee to enter the office or serve customers. Additionally, the employee was required to check in daily using a QR code and practise social distancing. Prior to the dismissal, the employer intimated the employee of such action citing reasons including:

• Illegally travelling when a public health order prohibited it 
• Travelling without advising the [employer] of his movements; 
• Failing to use QR codes; 
• Did not believe in COVID-19 nor the public health orders; and 
• Ignored several warnings, among others

Upon intervention, the FWC concluded that the employee was entitled to his beliefs about the pandemic and public health orders but was not entitled to refuse to comply with the employer’s lawful directions and government orders. 

The employee was denied an opportunity to respond to the reasons for his dismissal, however, the FWC said that there was “no possibility he might have given a response or explanation which might have avoided or delayed his dismissal”.

While the Commission noted that an employee’s unlawful conduct “while not at work, is not per se a valid reason for dismissal”, they added that the unlawful conduct must be “likely to cause serious damage to employment relationship or damage employer’s interests, or be incompatible with employee’s duty as an employee.” 

Noting that employer’s COVID-19 safety requirements were “a lawful and reasonable direction”, the Commission agreed that the employee’s “wilful and repeated failure” despite warnings constituted a valid reason for dismissal.

“The [employee’s] behaviour posed unacceptable health and safety, liability and reputational risks to the employer,” said the FWC, adding that the dismissal was “not harsh, unjust or unfair”. 

A divide between vaccination and anti vax has already been impacting employee pulse around government mandated safety measures. However, in the face of the new variant, vaccination, boosters and following safety requirements remain crucial to minimise risk to health and life. Amid such circumstances, taking strict actions upon non-adherence to safety protocols, will be critical to model expected behaviour from the workforce and population at large, as well as modeling the consequences of not complying.