Is a breach of COVID-19 policy a valid reason for dismissal?

In the case of Fesshatsyen v Mambourin Enterprises Ltd (2021) FWC 1244, Fesshatsyen (the employee) was a disability support worker for Mountain Enterprises Ltd (the employer). The employer had introduced a workplace procedure due to the rise of COVID-19, requiring that employees’ record their temperature once they entered the workplace.

On 10 June 2020, the employee arrived at work and recorded her temperature. The first recording gave a reading of 33 degrees Celsius. Due to this low reading, a second temperature check was conducted and indicated a reading of 38.5 degrees Celsius. Fesshatsyen and the temperature checker deemed the device to be unreliable due to varying readings, and she remained at work.

Later on that day, Fesshatsyen expressed to another staff member that her son had felt unwell the night before, and had a temperature of 38 degrees Celsius when she had taken him to school that morning. The staff member checked with Fesshatsyen if she had recorded her own temperature in the register that morning. She stated that she had, but did not mention the varying readings.

The employer performed an internal investigation into this incident, and consequently invited Fesshatsyen to a meeting to elaborate on the alleged conduct. At the meeting, the employer notified Fesshatsyen that due to her conduct, her employment may be terminated.

Fesshatsyen was summarily dismissed (dismissed ‘on the spot’) the next day on the basis of failing to carry out a reasonable and lawful instruction, and for causing serious and imminent risk to the health and safety of the employer's vulnerable customers and her colleagues at work. She then lodged an unfair dismissal application with the Commission.

The Commission dismissed Fesshatsyen’s application.  It held she had failed to carry out a lawful and reasonable instruction, resulting in a serious risk to the health and safety of all other employees and patients within the workplace.

Additionally, the Commission held that Fesshatsyen had engaged in conduct that led to a deliberate, known, and serious breach of the conditions of her employment.

Due to Fesshatsyen showing no remorse for her actions, and not understanding how serious the effects of her actions were, the employer’s reason for dismissal was reasonable and valid within the meaning of the Act.