Voluntary resignation found where employee refused to wear face mask
Watson v National Jet Systems Ltd
Background
The applicant lodged this general protections application to deal with contraventions involving her dismissal. The respondent is part of the Qantas Group. The applicant was employed as cabin crew and was required to wear face mask. She sought a medical exemption from wearing a mask which was supported by medical reports. The respondent refused to grant the applicant an exemption, contended that the provided medical reports did not refer to any condition that would prevent mask wearing. The respondent directed the applicant to attend work with a mask or risk disciplinary action.
The applicant did not attend work but wrote to the respondent claiming that the mask requirement was breach of her employment contract. The respondent responded that the applicant’s letter amounted to repudiation of her employment contract and contended that the requirement to wear mask was a lawful and reasonable direction.
The respondent raised a jurisdictional objection to the application on the basis that the applicant was not dismissed. They also submitted that State law made wearing a mask a legal obligation and the respondent’s direction did no more than require the applicant to meet that obligation. The applicant submitted that she believed that she was constructively dismissed and forced to resign because of the respondent’s conduct, within the meaning of s.386(1)(b) of the Fair Work Act. She submitted that the mask requirement was an unenforceable variation to her employment contract.
Outcome
The Commission considered the meaning of ‘lawful and reasonable directions’. Lawfulness lies in absence of illegality within the scope of employee’s service [Grant]. Reasonableness tested against what reasonable employer in situation would do [Woolworths]. The Commission recognised that the respondent’s mask mandate was implemented with exemptions for medical reasons. The Commission held the clearly documented exemption process supported a finding of reasonableness and noted evidence that the respondent had granted exemptions to other employees. The Commission held that the applicant had not provided suitable medical evidence. The Commission found the respondent’s direction to attend work and comply with the mask mandate was a lawful and reasonable direction. The Commission further found that this direction did not amount to repudiation of the employment contract. As a result, the applicant’s employment contract remained on foot.
The Commission then considered ‘constructive dismissal’ and that ‘it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment’ [Bupa]. The Commission found the applicant had options for attending work or obtaining additional medical evidence to support an exemption. The Commission observed that the applicant did not exercise those options but instead wrote to the respondent to inform them of her resignation. As a result the Commission held that her resignation was voluntary, and the applicant was found not to have been dismissed. The general protections application was dismissed.
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Report provided by the Fair Work Commission