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Stayed at work after failed COVID temperature check – dismissal upheld

She claimed her sacking was unfair, but a commission did not agree.
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Stayed at work after failed COVID temperature check – dismissal upheld

Stayed at work after failed COVID temperature check – dismissal upheld

16 March 2021

By Gaby Grammeno

When a worker failed to disclose her higher-than-normal temperature and kept on working - in breach of her employer’s COVID safety policy - she was dismissed. She claimed her sacking was unfair, but a commission did not agree, finding her actions amounted to deliberate misconduct.


The incident

The woman was employed as a disability support worker with a provider of support services and training for people with a disability.

Her contract of employment required her, among other things, to undergo regular medical checks, acquaint herself with and comply with all the employer’s policies and procedures and comply with all reasonable instructions to protect her own and others’ health and safety at work.

In early April 2020, her employer introduced a temperature check procedure to prevent and minimise the spread of COVID-19. The procedure required everyone attending any of the employer’s workplaces to complete a temperature check on entry, undertaken by a nominated staff member.

The results were to be recorded in a temperature check register. The procedure required anyone with a temperature over 38 degrees to be immediately isolated, and management to be notified. Any staff member with an elevated temperature was required to immediately leave the site and go home or to the medical centre.

On 10 June the worker’s first temperature reading was an impossibly low 33 degrees, so a second check was conducted and registered 38.5 degrees. The result was entered into the register, but both the worker and the person doing the check considered the temperature checking device was unreliable on account of these inconsistent readings taken within minutes.

Neither the worker nor the person who took the reading reported the result to management, and the worker proceeded to go about her duties.

Shortly after this, the team leader briefed the worker on the day’s roster. The worker mentioned that her son was not feeling well when she’d dropped him at school, but that the school had accepted him after checking his temperature, which was 38 degrees. However, she failed to mention her own temperature reading of 38.5.

Later that day, the woman left work early to attend to a matter concerning her son at school, and the following day a colleague phoned her about her temperature reading of 38.5 and a requirement that she self-isolate for two weeks because she’d attended a rally.

On 14 July the worker was informed that a workplace investigation would be considering her failure to comply with the COVID temperature check procedure, placing vulnerable people with disabilities and her colleagues under significant risk to their health.

At a meeting two days later, the worker insisted her temperature ‘is never over 36’. She was observed to be argumentative and confrontational, with no remorse or contrition and no accountability for not following procedure or any real acknowledgement of how important safety procedures are.

Because she had breached the organisation’s temperature check procedure, her employment was terminated and she was summarily dismissed, citing serious misconduct.

Believing her sacking was not justified, she applied to the Fair Work Commission for an unfair dismissal remedy.


In the commission

The commission needed to decide whether the dismissal was harsh, unjust or unreasonable.

In cases of alleged misconduct, it is not enough for the employer to establish that it had a reasonable belief that the termination was for a valid reason – the commission must make a finding, on the evidence provided, whether on the balance of probabilities the alleged conduct occurred.

Considering all the evidence as to how the COVID temperature check policy requirements were communicated to the worker, the commission found her assertion that she was unaware of them ‘simply implausible’.

The deputy president also found that she did not, at any time, demonstrate any insight into the seriousness of her behaviour, preferring to justify it in various ways which the DP found ‘did not withstand scrutiny and were even dishonest at times’.

The commission found that there was a valid reason for the worker’s dismissal. She’d had an opportunity to respond to the allegations, and her sacking was not harsh, unjust or unreasonable.

The worker’s application was dismissed.

The bottom line: The employer’s policies to prevent and minimise the spread of COVID-19 must be taken seriously and complied with.


Read the judgment

Fesshatsyen v Mambourin Enterprises Ltd [2021] FWC 1244 (9 March 2021)

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