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Sacked after coughing in nurse's face

Employee justifiably dismissed for coughing in nurse's face.
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Sacked after coughing in nurse

Sacked after coughing in nurse's face

9 September 2020

By Marise Donnolley

A catering assistant at an aged care facility was justifiably dismissed for coughing in the face of a nurse taking his temperature, the Fair Work Commission has ruled.

It agreed with the employer that the behaviour was 'unacceptable' and it would be 'untenable' for the worker to continue in his employment.

Facts of the case

The part-time worker was employed by catering contractor Cater Care Australian Operations Pty Ltd in August 2013. He worked at Uniting Wesley Heights – a facility with 121 residents either in an aged care or a nursing home environment with many residents considered as high risk and others in palliative care. His employment was covered under the UnitingCare Aged Care Residential & Community Services Agreement (NSW) 2011-2013.

In April this year the part-time worker was dismissed for serious misconduct.

The termination letter stated that the worker deliberately coughed in a registered nurse's face because he was annoyed he had to have his temperature taken before starting work.

The nurse told the commission that the worker made no effort to move back or cover their mouth or to apologise.

She said she 'felt angry' and told the worker not to cough in her face.

The commission heard that the worker had received training in the form of tool box notes concerning the need for strict hygiene measures while at work.

Part of that information included a statement: “Cover your cough and sneeze with bent elbow or disposable tissues and use alcohol-based hand sanitiser. Maintain one metre from anyone coughing or sneezing.”

The worker did not dispute that his signature was on the tool box notes document and said the contents had been explained to him by a manager.

However, he said, coughing while having having his temperature taken was not a reason to dismiss him. He submitted that the real reason for dismissal was that he had a workers' compensation injury and was on light duties.

The worker told the commission he had coughed involuntarily and it was "too sudden" for him to put his hand over his mouth, and that while coughing he did not open his mouth.

He said the nurse was not angry at the time, but he was later told by his manager that the aged care management was not happy and that he should apologise to the nurse which he did.

Although he accepted that the conduct occurred, he disputed its deliberate nature and his ability to have taken any preventative measures.

'Unacceptable' behaviour

Deputy president Bull said: "Whether the cough was deliberate or involuntary, [the worker] did not provide any plausible explanation as to why he took no evasive action, which could have occurred in a split second, to either turn his head, attempt to cover his mouth, or move away from [the nurse]. This, together with [his] failure to immediately apologise or instantly recognise that the conduct was a serious incident that was contrary to the known hygiene procedures in an aged care facility during a pandemic, raises the incident in its seriousness exponentially."

The deputy president noted that the nurse was appalled by the incident and concerned for her own health and that of the facility's residents and staff.

He accepted the employer's proposition that "such behaviour is unacceptable in a high-risk environment such as the applicant's work site and that it would be untenable for him to continue in his employment in such an environment".

The DP said the behaviour was "inconsistent with all expectations of his employer and posed a potential serious health risk to the residents and employees at Uniting Wesley Heights and understandably led to a direction... that the applicant was to no longer work at the site."

He also found the dismissal was not related to the worker's compensation claim.

The application was dismissed.

Read the judgment

Hedayat Hooshmand v Cater Care Australia Operations Pty Ltd (U2020/4668)[2020] FWC 4371

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