Picture this: a residential aged care facility worker is caught by the Aged Care Quality and Safety Commission not wearing their mask properly, in the middle of the COVID-19 pandemic. The employee apologises, they have been employed for 6 years and do not have a record of disciplinary action. What disciplinary action is warranted? When the health and safety of residents is paramount, where can employers draw the line?

The Fair Work Commission considered these questions in a recent decision Angela Daddona v Menarock Aged Care Services (Shepparton) Pty Ltd [2022] FWC 1184, which provides useful guidance for employers on what constitutes “serious” misconduct.

Background

Ms Angela Daddona was employed by Menarock Aged Care Services (Shepparton) Pty Ltd as a Food Services Assistant at its aged care facility in Shepparton, where she was responsible for preparing and distributing meals and drinks to residents.

In 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 of Menarock told staff members that there would be an audit that day and reminded them to wear their personal protective equipment correctly.

While Ms Daddona was undertaking a round of the residents’ rooms with the tea trolley she saw the auditor stop briefly, then walk quickly past her. Soon after the facility manager, Ms Angela Marchant, approached Ms Daddona 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 submitted 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 the resident could hear her. Ms Daddona said that she had 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.

After meeting with Ms Daddona about the incident, Menarock terminated her employment for serious misconduct, concluding that Ms Daddona was aware of the requirement to wear personal protective equipment correctly, had deliberately failed to adhere to the policy, and thereby placed the health and safety of residents at risk. Menarock also contended that Ms Daddona had been aware of the auditors from the Aged Care Commission being onsite on that morning.

Fair Work Commission Decision

Regarding the factual circumstances of this matter, the Commission found that:

  • Ms Daddona knew about Menarock’s policy that face masks must be worn at work and over the nose;
  • Menarock monitored employee compliance with the face mask policy and took steps to enforce it, but failed to tell employees that their employment was at risk if they failed to wear face masks or wear them properly;
  • Menarock’s employees were regularly reminded of the importance of wearing personal protective equipment, including in a memorandum issued by Ms Marchant on 11 August 2021, although it was conceded that Ms Daddona had no recollection of seeing this memorandum;
  • There was no general custom and practice that Menarock employees would lower their masks to speak with residents, there were some employees who utilised this practice, and this resulted in Ms Marchant’s memorandum of 11 August 2021; and
  • Ms Daddona was aware of the special vulnerability of aged persons to COVID-19, and she understood the risk of transmission.

The Commission determined that Ms Daddona’s conduct was serious and failing to wear her mask properly resulted in a risk to the residents’ health and contributed to the Menarock receiving adverse findings in the external audit. However the Commission found Manarock’s decision to terminate Ms Daddona’s employment for serious misconduct was disproportionate. The Commission commented that Ms Daddona’s conduct had not caused a serious and imminent risk to health and safety (because there was no evidence about how close she was to residents with her mask lowered), nor had she caused a serious and imminent risk to Manarock’s reputation because the audit found a number of health concerns that were not just related to her behaviour.

In conclusion, the Commission found that there was a valid reason for the dismissal. However because Ms Daddona had not been warned that a failure to wear her mask properly could result in immediate dismissal, the termination without notice was harsh. The Commission ordered Menarock to pay Ms Daddona $3,152.84, which represented the notice Ms Daddona would have received if her employment had not been terminated summarily, less a deduction of 10% based upon Ms Daddona’s misconduct.

Key Take Aways

The Commission made it clear in this decision that aged care employees will be held to high standards when it comes to the protection of the health and safety of aged care residents in light of their special vulnerability to COVID-19 and in the context of the many deaths that have occurred in aged care facilities over the course of the pandemic.

Despite this, and even when requirements to comply with relevant safety requirements may seem obvious, employers should still ensure they take appropriate steps, including training, so that employees understand their obligations and the consequences that may arise if they do not comply with such requirements.

Employers should also turn their minds to their policies when undertaking disciplinary processes and comply with their obligations to ensure procedural fairness when terminating an employee’s employment, in particular where the employee is eligible to make an unfair dismissal claim.