Fair Work Act 2009
s.394—Unfair dismissal

Unfair dismissal application – failure to wear mask properly in aged care facility – failure observed by auditors – misconduct – valid reason – no warning – summary dismissal harsh

[1] This decision concerns an application made by Ms Angela Daddona under s 394 of the Fair Work Act 2009 (Act). On 9 December 2021, Ms Daddona was summarily dismissed from her employment with Menarock Aged Care Services (Shepparton) Pty Ltd (company) after an inspector conducting an external audit of the facility saw her not wearing her facemask correctly, contrary to company policy. Ms Daddona contends that her dismissal was unfair because she was summarily dismissed without warning after six years of employment and had only lowered her mask in order to communicate with residents who were hard of hearing. She contends that the company’s policy in relation to wearing masks was not consistently enforced, and that other workers who did not wear their masks properly were not dismissed. The company submits that it had a clear and consistently applied policy that masks were to be worn properly at all times and that Ms Daddona’s failure to wear her mask correctly was a serious failing warranting immediate dismissal.

[2] Section 396 requires that I decide four matters before considering the merits of the application. I am satisfied of the following. First, the application was made within the 21-day period required by s 394(2). Secondly, Ms Daddona was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, the company is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable

Background

[3] Ms Daddona was employed as a food services assistant at the company’s aged care facility in Shepparton. She was responsible for preparing meals and drinks and distributing them to residents. On the morning of 2 December 2021, auditors from the Aged Care Quality and Safety Commission (Aged Care Commission) were conducting an assessment of the facility. The clinical care manager, Ms Charmandeep Kaur, told staff that there would be an audit that day, and reminded employees that they had to wear their ‘PPE’ (personal protective equipment) correctly. After breakfast, Ms Daddona began her rounds of the residents’ rooms with the tea trolley. Her colleague ‘Sharon’ accompanied her. Towards the end of the round, as they crossed a corridor from one room to another, Ms Daddona saw the auditor stop briefly, then walk quickly past her. Ms Daddona said that within about a minute the facility manager, Ms Angela Marchant, rushed up to her and said: ‘Lena, the auditor just caught you and Sharon without your masks on correctly. Do you know what the consequences of that will be?’. Ms Daddona’s evidence was that she had just come out of the room of a new resident who was hard of hearing, and that she had had to lower her mask so that he could hear. Ms Daddona said that she had then forgotten to pull her mask back up before moving to the next room, at which point the auditor had seen her. Ms Daddona said that she acknowledged that she had made a mistake, but that it was not a deliberate one.

[4] Ms Daddona said that when she returned to the kitchen from her round, Ms Marchant ‘started’ at her for not wearing her mask properly. Ms Daddona told Ms Marchant that a lot of other staff did not wear their masks properly, and Ms Marchant replied that she had got caught whereas the others had not. Later that day, the company gave Ms Daddona a letter stating that she was required to attend a disciplinary meeting on 6 December 2021 to discuss an allegation that she had failed to follow the company’s PPE requirements by wearing her mask below her nose, which had been witnessed by a quality assessor. The meeting on 6 December 2021 occurred in person. Ms Daddona was accompanied by her union representative, Ms Megan Reid, who attended via Zoom. At the meeting, Ms Daddona told Ms Marchant that the reason she had lowered her mask was that some residents had problems with their hearing and they could understand better if the mask was lowered, and that there was a practice of this occurring at the facility. She said that she had not deliberately left her mask down when she left the resident’s room. She admitted that she had done the wrong thing and apologised.

[5] On 9 December 2021, a further Zoom meeting took place, at which Ms Marchant told Ms Daddona that the company had decided to terminate her employment effective immediately. Ms Daddona was given a letter the same day, stating that the company had concluded that Ms Daddona was aware of the requirement to wear PPE correctly, that she had been reminded of the requirement on the morning of 2 December 2021, and that she had deliberately failed to adhere to the policy, thereby placing the health and safety of residents at risk. It further stated that Ms Daddona had been aware that an inspector was on site that morning and that the company had previously recorded a ‘not met’ in this area in a previous accreditation visit.

[6] Ms Daddona accepted that she was supposed to wear her mask over her nose. She said however that nobody took mask wearing very seriously and that there was a laid back attitude towards it. She said that when other staff came into the kitchen, they would usually pull their masks down, and that Ms Marchant did not always wear a mask. She said that other than being reminded that there was going to be an audit in early December 2021, she did not recall ever being told that there was a problem with the way staff were wearing masks.

[7] Ms Marchant gave evidence that Ms Daddona’s contract of employment required her to comply with the company’s policies. One such policy was the COVID-19 Safe Plan, item 4 of which stated that all staff were to wear a face covering. Ms Marchant said that since 2020, the company had provided extensive training to staff on measures to manage COVID-19 to protect both residents and staff, including on how to wear PPE correctly, and that Ms Daddona had received this training. Ms Marchant said that she herself had conducted training demonstrating how masks should be worn. She said that the company conducted spot checks to ensure staff were wearing their masks and that employees who were found not to be wearing masks were ‘prompted to put this right’ and undergo further training if necessary. Ms Marchant said that she considered that staff had been given ample opportunity to comply with the requirement to wear a mask properly and to ask for further training if needed.

[8] Ms Marchant gave evidence that she always wore her PPE correctly. She said that in a memorandum dated 11 August 2021, she had advised staff that the company had noticed that some employees were not wearing their masks correctly, and that masks should always cover the nose. The memorandum stated that if employees had problems being understood by a resident they should ask for assistance. The memorandum was placed on notice boards and also sent to employees’ personal email addresses. Ms Daddona said that she did not recall receiving this memorandum.

[9] Ms Marchant said that employees were regularly reminded of the importance of wearing face masks, including at staff meetings. She produced a minute of a catering meeting on 26 November 2021, recording that staff had been told to ensure that their masks were in the correct position. The minute records that staff were told that ‘masks are always mandatory… given that we have been through two lockdowns with staff contracting COVID and entering the facility’. The minute records Ms Daddona as being present at the meeting.

[10] Ms Marchant said that at the start of each shift employees were required to declare that they would wear their PPE correctly, and that Ms Daddona completed a declaration on the morning of 2 December 2021. The declaration document, signed and dated by Ms Daddona, was produced in evidence. A tick appears in a box following text that states: ‘I will wear appropriate PPE at all times’. Ms Marchant also said that on the morning of 2 December 2021 Ms Kaur had reminded staff of the requirement to wear PPE correctly.

Submissions of the parties

[11] Ms Daddona contended that her dismissal was unfair because she was summarily dismissed after six years of service, had not received any warnings in relation to the use of PPE or any other matters, and that the inconsistent application by the company of its PPE policy meant that there was no valid reason for her dismissal. Ms Daddona said that there was a custom and practice at the workplace, accepted by the company, that staff would remove their masks to talk to residents who had difficulty hearing, and that she had simply forgotten to pull her face mask up after speaking with a resident. Further, Ms Daddona contended that the Victorian government directions mandating use of PPE had not been provided to staff, and that staff had also received minimal training on how to wear masks correctly. Ms Daddona submitted that, even if there was a valid reason for dismissal, her termination was nevertheless unfair because it was disproportionate to her conduct, and unfair on the basis that she was treated differently to other employees who had not worn their masks correctly but who were not dismissed. She said that the company had only dismissed her because she had been seen by an auditor not wearing her mask properly, and that she had shown contrition and would have striven to adhere to the rules had she been given a warning and another chance.

[12] The company contended that Ms Daddona had contravened an important safety policy by not wearing her mask properly, despite staff having been told on numerous occasions that they were required to do so. Ms Daddona’s explanation for having lowered her mask on the morning of 2 December 2021 was not an acceptable one. The company had specifically told employees that masks had to be worn properly over the nose, and that if they encountered difficulties communicating with the residents, then they should seek the assistance of another staff member. The company submitted that aged care residents are at high risk of contracting COVID-19 and are especially vulnerable to serious illness and death from the disease. Ms Daddona understood that she was required to wear a mask properly, was reminded of the requirement again on the morning of 2 December 2021, affirmed that she would wear her PPE, and then proceeded to ignore the requirement. The company contended that this conduct provided a valid reason for dismissal and constituted serious misconduct, and that its decision to summarily dismiss Ms Daddona was a proportionate response, such that in all the circumstances her dismissal was not harsh, unjust or unreasonable, and therefore not unfair.

Findings

[13] I make the following factual findings. First, it was the company’s policy that staff must wear face masks while at work, and that masks must be worn over the nose. Secondly, Ms Daddona was aware of these requirements. Thirdly, I find that the company monitored employees’ compliance with the policy and took steps to enforce it. However it did not tell employees that their employment was at risk if they failed to wear masks or wear them properly. Fourthly, I accept Ms Marchant’s evidence that staff were regularly reminded about the importance of wearing PPE, and that she herself always wore her mask correctly. She denied Ms Daddona’s accusation that she did not always wear a mask. Ms Marchant was a credible witness and I believe her. Fifthly, while I do not accept that there was a general ‘custom and practice’ that employees would lower their masks to speak with residents, I find that some employees had this practice, and that it was sufficiently common to have aroused Ms Marchant’s concern and prompted her to issue the memorandum of 11 August 2021 telling staff not to do this. I find that management did not endorse the practice. This is clear from the memorandum of 11 August 2021. Sixthly, I accept Ms Marchant’s evidence that the memorandum of 11 August 2021 was sent to employees’ personal email addresses, but I also accept Ms Daddona’s evidence that she has no recollection of ever seeing this memorandum. Lastly, I find that Ms Daddona was aware of the special vulnerability of aged persons to COVID-19, and that she understood the risk of transmission from staff to patient.

Consideration

[14] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). Section 387 requires the Commission to take into account particular matters in considering whether it is so satisfied.

[15] The Commission must consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). In my opinion the company had a valid reason to dismiss Ms Daddona, because she failed to comply with its requirement that she wear a face mask properly, over her nose, at all times. Ms Daddona acknowledged in her evidence that she was required to wear her face mask up, and that she failed to do so on 2 December 2021. She expressed remorse. She understood the importance of wearing a mask. Further, she had been reminded on the morning of the incident that there was an audit being conducted that day and that she was required to wear her mask properly. She had signed the daily declaration acknowledging that she would wear PPE.

[16] The fact that there had been previous instances of staff not wearing their masks properly does not affect the conclusion that there was a valid reason for dismissal. I accept Ms Marchant’s evidence that she repeatedly reminded staff of the requirement that they wear PPE and would tell staff to pull their masks up. The memorandum of 11 August 2021 is one example of the company’s effort to ensure compliance. That document specifically told staff that if they found it difficult to communicate with residents, they should seek assistance. Pulling one’s mask down to communicate was not acceptable.

[17] I reject the contention that, because the relevant government directions on use of PPE were not given to employees, the validity of the reason for dismissal is in some way impugned. The directions impose duties on employers, who must then ensure compliance through relevant workplace arrangements. This is what the company did. I also reject the submission that the company was unclear as to when an employee should wear a mask. The memorandum of 11 August 2021 clearly stated that the mask should always cover the nose and in their morning declarations staff affirmed that they would wear PPE ‘at all times’. I accept that Ms Daddona did not see the memorandum of 11 August 2021. But she recognises that she did the wrong thing by not wearing her mask properly.

[18] Ms Daddona understood that elderly persons were especially vulnerable to COVID-19. It was of the utmost importance that safety measures be strictly adhered to. Ms Daddona did not do what was required of her. She thereby put vulnerable persons at risk. On any view, this was a legitimate reason for the company to dismiss Ms Daddona.

[19] The Act requires the Commission to take into account whether an employee has been notified of a valid reason for dismissal and whether he or she was afforded an opportunity to respond to any reason related to capacity or conduct (ss 387(b) and (c)). The company’s discussions and correspondence with Ms Daddona alerted her to the proposed reason for dismissal and gave her an adequate opportunity to respond.

[20] The Commission is required to consider whether an employer unreasonably refused to allow the employee to have a support person present to assist in discussions relating to the dismissal (s 387(d)). There was no such refusal. If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. Ms Daddona’s employment was not terminated for unsatisfactory performance, but for misconduct. In such a case, s 387 does not require the Commission to consider whether an employee received a warning, however this may still be a relevant consideration under s 387(h). I return to this below.

[21] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f) and (g)). I do not consider that these matters carry weight in this case.

[22] The Commission must take into account any other matters that it considers relevant (s 387(h)). I take into consideration the fact that Ms Daddona had worked for the company for some six years and had a good record. She had not previously received any disciplinary sanctions. These matters should be afforded due weight.

[23] Ms Daddona contended that the company’s decision to dismiss her was intimately linked to the fact that she was seen by an assessor from the Aged Care Commission not wearing her mask correctly. She said that it was unfair of the company to attribute the Aged Care Commission’s adverse findings and any associated adverse publicity to her conduct, as the report identified a number of other areas in respect of which the facility was found not to be compliant with aged care standards. She also submitted that the Aged Care Commission had previously audited the same facility in May 2021 and found it to be non-compliant in a number of areas, including Requirement 3(3)(g) (minimisation of infection risks). The audit report, issued in July 2021 said that the assessment team had seen multiple instances of staff failing to comply with effective wearing of masks, including by lowering masks to talk to other people. Further, the audit report from December 2021 made recommendations for improvement, including, in relation to Requirement 3(3)(g), that the company ‘implement and monitor effective infection control and minimisation practices’, and that it ‘educate and monitor staff to ensure adherence with infection control protocols’. Ms Daddona said that these conclusions pointed to failures in management action and governance, rather than her singular failure to wear PPE correctly on 2 December 2021.

[24] The company’s reasons for dismissing Ms Daddona were set out in the letter of termination of 9 December 2021, referred to earlier. Those reasons did not include the fact that the company was found not to have met Requirement 3(3)(g), although in my view it would have been reasonable for the company to take into account that Ms Daddona’s conduct likely contributed to that result. Further, the fact that the audit report made recommendations for improvement directed at the company is not a reason to think that employees are absolved of responsibility for their own actions. Ms Daddona knew that she had to wear a face covering over her nose. She failed to do so. This was her failing, not the company’s.

[25] Ms Daddona submitted that she was treated less favourably than other employees who had simply been reminded to wear their masks properly. However, with two exceptions, the circumstances of the other cases are not in evidence. Sharon, Ms Daddona’s co-worker on the morning of the incident, resigned from her employment following the incident. Ms Daddona suggested that there was some unfairness in the fact that in February 2022 Sharon was rehired on a casual basis. I disagree. The company also later offered to reemploy Ms Daddona, but she declined the offer. Another employee who had recently been found not wearing her mask correctly received a final warning, but that case is distinguishable because the employee was considered not to have understood the requirements because of her poor English.

[26] A relevant consideration is whether Ms Daddona committed serious misconduct, such that the company was not required to give or pay notice under s 117 of the Act (see s 123(1)(b), and the definition of serious misconduct in regulation 1.07). Of course, the Commission is not a court and cannot finally determine this question, nor can it order payment of any amounts to which an employee might have been entitled. But the Commission can form a view about whether serious misconduct has occurred, as part of its consideration of whether summary dismissal was a proportionate response to the conduct in question. I am not persuaded that Ms Daddona’s conduct amounted to serious misconduct. It has not been established that her conduct caused a serious and imminent risk to the health and safety of a person (see Reg 1.07(2)(b)(i)). For example, it is not known how close she was to residents or other persons when her mask was lowered. And although I consider that Ms Daddona’s conduct posed a risk to the company’s reputation, I am not satisfied that it caused a serious and imminent risk (Reg 1.07(2)(b)(ii)) to that reputation, in circumstances where the audit revealed a number of concerns in relation to care standards. Nor am I persuaded that Ms Daddona refused (rather than simply failed) to carry out a lawful and reasonable instruction that was consistent with her contract of employment (see Reg 1.07(3)(c)), or that her conduct was inconsistent with the continuation of the contract of employment (Reg 1.07(2)(a)). I accept Ms Daddona’s submission that she was contrite and that she would have adhered to the rules if she had been given a warning.

[27] In any event, a conclusion that a person has committed serious misconduct does not necessarily mean that the person’s summary dismissal was fair in all the circumstances. In this case, I am very mindful of the special vulnerability of aged care residents to COVID-19, and of the fact that many deaths occurred in aged care facilities over the course of the pandemic. Clearly, dismissal was warranted in this case. It should have been obvious to staff working in an aged care facility with vulnerable residents that they risked dismissal if they did not wear their masks properly. This is so, despite the fact that the company did not have a robust approach to disciplinary action, evident, for example, in its common practice during spot checks of reminding workers to pull their masks up, rather than warning or dismissing them. But leniency is not to be mistaken for acquiescence. Nor does past leniency mean that employees should not reasonably have expected the possibility of being dismissed for not wearing their masks properly. In deciding to dismiss Ms Daddona, the company took the disciplinary action that would likely have been warranted in many other cases where employees had not worn masks properly. The company’s previous lenient approach did not deprive it of the ability to take firm and fair disciplinary action.

[28] Nevertheless, in such a context, if the company proposed to dismiss an employee summarily for incorrect mask-wearing, it should in my view have warned employees that this could be the sanction for such conduct. As noted earlier, s 387 does not require the Commission to consider whether an employee was warned about conduct (as opposed to poor performance) that is a reason for dismissal. However I consider that it is a relevant consideration in this case. The absence of a warning renders the decision summarily to dismiss Ms Daddona harsh.

[29] Ms Daddona’s conduct was serious. She knew that she was required to keep her mask up. She did not do so. This placed residents’ health at risk. It contributed to the company receiving adverse findings in the external audit. The conduct warranted dismissal. However in my view summary dismissal was disproportionate in the circumstances because Ms Daddona had not been told that her employment was at risk of immediate dismissal if she did not wear her mask properly. She should have been afforded notice of termination of employment, or payment in lieu of notice.

[30] Ms Daddona does not seek reinstatement, but compensation. I am satisfied that it would not be appropriate to order reinstatement in the circumstances, and that compensation is appropriate (see s 390(3)). As to the considerations bearing on the determination of the quantum of compensation that are set out in s 392, I note the following.

[31] First, I do not consider that the order I propose to make will affect the viability of the employer’s enterprise (s 392(2)(a)). I take account of Ms Daddona’s length of service with the company, which is some six years (s 392(2)(b)). Section 392(2)(c) requires the Commission to consider the remuneration that the employee would likely have received if she had not been dismissed. This requires the Commission to assess how long the employment might have continued, but for the dismissal. In my view, if the company had not dismissed Ms Daddona on 9 December 2021, it would likely have dismissed her shortly afterwards, and done so by paying her five weeks in lieu of notice. I consider it unlikely that the company would have allowed Ms Daddona to work out the notice period. The employment would have ended in mid-January 2022. Ms Daddona would have earned five weeks’ pay. (Irrespective of s 392(2)(c), I consider that, having regard to s 392(2)(g), the extent of the unfairness of the dismissal in this case is confined to the fact that Ms Daddona was dismissed without notice, and therefore the five week period is the appropriate starting point for the calculation of compensation). As to efforts to mitigate loss (see s 392(2)(d)), I note that Ms Daddona quickly obtained two new jobs (see below). In light of what I have said above, I do not consider s 392(2)(f) to be of significance in this case. To this point in the application of the considerations in s 392, the appropriate quantum of compensation is five weeks’ pay: $23.3542 per hour for 30 hours per week, which amounts to $3503.15.

[32] The Commission is required by s 392(2)(e) to take into account the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation. Given what I have said above, it is relevant to focus on the income earned during the five week period following the dismissal. Ms Daddona said that a day or two before Christmas, she obtained casual work with Rumbalara Aboriginal Cooperative Limited (Rumbalara). She submitted payslips from late March and April 2022 only, not from December 2021 and January 2022. These show an hourly casual rate of $27.81. In her evidence, which I accept, Ms Daddona said that she worked approximately six hours a day, three days a week. Proceeding on the basis that Ms Daddona worked 18 hours a week at Rumbalara, I find that in each of the third, fourth and fifth weeks following her dismissal, Ms Daddona earned $500.58, amounting to $1501.74 in total. Ms Daddona also acknowledged through her counsel that she had earned $1949.42 from employment with Gouge Dry Cleaning between 22 December 2021 and 4 January 2022. Therefore, in the five weeks following her dismissal, Ms Daddona earned $3451.16.

[33] Ms Daddona said that after her dismissal she continued to work her second job with Pental Products Pty Ltd (Pental). There is no evidence as to whether Ms Daddona’s hours of work with Pental increased following her dismissal; there are payslips only from March and April 2022. In its final written submissions, the company submitted that Ms Daddona ought to have submitted Pental payslips from the period following her dismissal. But the company did not seek orders for their production or ask Ms Daddona questions in cross-examination about these earnings. There was no onus on Ms Daddona to lead such evidence. There is no evidentiary basis for me to conclude that Ms Daddona’s earnings increased in the five week period following her dismissal.

[34] I take account of the earnings referred to above, however in my view it is not appropriate to deduct these amounts from the compensation to be ordered. As noted earlier, the extent of the unfairness in this case is confined to the fact that Ms Daddona was not provided with notice or payment in lieu. In my view, had the company dismissed Ms Daddona fairly, with notice, it is likely that it would have made payment in lieu of notice, rather than allowing her to work the notice period. Ms Daddona would then have looked for work and been able to earn the amounts referred to above in any event. More generally, s 392 requires the Commission to consider all the circumstances, not just those in ss 392(a) to (f). It is well established that the Commission should consider whether the amount that is produced by the application of the considerations in ss 392(a) to (g) renders an appropriate amount. In my view, deducting the moneys earned by Ms Daddona in the five weeks after dismissal would not produce an appropriate amount of compensation, given my conclusion that she should have been terminated on notice, which in my view would likely have been paid out, allowing her then to work and earn these additional amounts.

[35] Section 392(3) provides that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person, it must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct. In my view an amount of 10% should be deducted; in the present case it would not be appropriate to significantly reduce an amount of compensation that is referrable to an unfair failure to afford or pay notice, or to apply a large percentage to a relatively small amount.

[36] I will order the company to pay Ms Daddona $3152.84, which represents five weeks’ pay less a deduction of 10%. An order is issued separately in PR741654.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR741653>

Appearances:

C. Granger for the applicant

J Fraumano for the respondent

Hearing details:

2022

Melbourne

27 April

Final written submissions:

Applicant: 4 May 2022

Respondent: 12 May 2022