Australia: How Should Employers Respond to Employees Who Refuse to Wear a Mask?

​The COVID-19 pandemic has again tested the bounds of established principles in the employment law space in Australia. This time, in Watson v. National Jet Systems Ltd., [2021] FWC 6182, the Fair Work Commission (FWC) was required to determine whether a direction that cabin crew wear a mask while flying was lawful and reasonable. If it weren't, the FWC was also required to determine whether the employee was constructively dismissed in circumstances where she refused to follow that direction and resigned on that basis.

Background

The employee was engaged as cabin crew by her airline employer. In October 2020, in response to the increased risk of COVID-19 infection, the airline mandated face masks for all cabin crew—and customer-facing employees—when performing duties, under its own policy. The mask mandate was introduced before the mandatory mask requirements were imposed by various public health orders across Victoria, New South Wales and Queensland by around January 2021.

The airline's mandatory mask policy included a comprehensive exemption process.

The employee sought an exemption from wearing a face mask shortly after it was mandated, and by January of this year, the airline allowed her to wear a face shield instead. The employee obtained a medical certificate that stated she should not be required to wear a face mask at work because it made her anxious. However, the medical certificate also stated that the employee had "no medical condition of note." The airline's medical branch rejected her medical certificate because it did not accept that she suffered from a medical condition that made it unsafe for her to wear a face mask while working.

By February of this year, the employee's legal representatives asserted the airline's mask mandate amounted to a non-consensual variation to the employee's employment agreement. In response, the airline argued the mandate was simply a lawful and reasonable direction. It further contended that, even if the direction were new, it did not amount to a variation to the employee's employment agreement but was instead the exercise of a power or right held by the airline under her employment agreement.

Decision

Deputy President (DP) Lake of the FWC confirmed that the airline's mask mandate was a lawful and reasonable direction in the context of the COVID-19 pandemic. Further, the FWC rejected the employee's submissions that she was constructively dismissed, bullied, harassed or discriminated against by the airline.

Why was the direction lawful and reasonable?

DP Lake reiterated the settled principles of lawful directions:

• To be lawful, a direction does not require a positive statement of law endorsing the action.
• It is sufficient that the direction does not involve illegality.
• The direction falls within the scope of service of the employee.

In relation to reasonableness, DP Lake referred to Woolworths Ltd. v. Brown, (2005) 145 IR 285, in which the court set out the following considerations:

• Reasonableness depends upon all the circumstances, including the nature of the employment.
• A policy will be reasonable if a reasonable employer, in the position of the employer in question, and acting reasonably, could have adopted the policy.
• A policy is not unreasonable merely because a commission member considers that a better or different policy may have been more appropriate.

In light of these principles, the FWC held that the airline's requirement that cabin crew wear face masks to mitigate the spread of COVID-19, and the consequences associated with the contraction of COVID-19, was a lawful and reasonable direction.

Nevertheless, DP Lake found the airline's exemption process material in determining the mask mandate was a lawful and reasonable direction. Absent that exemption process, DP Lake stated that his conclusion might have been different.

Constructive dismissal

The employee claimed the mask mandate was an unlawful and unreasonable direction, discriminatory, and accordingly, repudiated her employment agreement. On that basis, she claimed she had no alternative but to accept the repudiation and terminate her employment agreement. This was set out in a letter to the airline.

By response letter, the airline asserted the employee's employment agreement remained. It suggested the employee confirm whether she wanted to resign; her letter indicating that she no longer wished to remain employed. The airline also stated that if the employee did not resign, she would need to attend an independent medical examination (IME) to determine whether she had a medical exemption preventing her from wearing a face mask.

DP Lake agreed that the airline's letter did not dismiss the employee, constructively or otherwise. The employee's resignation occurred on her own accord.

Constructive dismissal claims at common law are difficult to establish. In short, they require employees to demonstrate that their employers' conduct would be likely to bring the employment relationship to an end. It is insufficient for employees to simply show they did not voluntarily leave their employment.

The employee was unable to satisfy this threshold. The FWC confirmed the employee had the following options:

• Attend work as directed; or
• Attend an IME to try to obtain medical evidence that would support her assertions that she had a medical condition preventing her from wearing a face mask; or
• Choose to do neither and instead instruct her lawyer to communicate her resignation.

DP Lake concluded the employee evaluated the options available to her and opted for the last. Accordingly, the employee's general protections application was dismissed.

Lessons for Employers

There are now various state public health orders mandating or requiring certain employers to ensure, as far as reasonably practicable, that employees wear face masks at work. Employers must observe those orders. If an employee simply refuses to wear a mask for no valid reason, the worker risks being lawfully dismissed, and depending on the jurisdiction, may even face criminal prosecution.

In any event, employers must take care that any mandatory mask requirements are given proper consideration to the particularities of their workplace, the risk of exposure to COVID-19 and any medical exemptions evidenced by employees.

In this case, the following factors were viewed favorably by the FWC when determining whether the employee was given a lawful and reasonable direction, and was not constructively dismissed:

• Having a clear and thorough exemptions process that allows the employer to determine whether employees can be exempt from the mask requirement for substantiated medical reasons.
• Having mask-wearing alternatives, such as face shields, and other health-control measures such as regular breaks from mask-wearing.
• Allowing employees to perform alternative duties until it is safe for them to return to their contracted role.
• Requesting employees to undergo an IME where their medical evidence does not reveal a medical condition preventing them from wearing a face mask.

Charles Power and Stefania Silvestro are attorneys with Holding Redlich in Melbourne, Australia. © 2021 Holding Redlich. All rights reserved. Reposted with permission of Lexology.