Can Employers Terminate Staff for Breaching Public Health Orders?

Unfair Dismissals 101

Unfair dismissal claims are governed by two different frameworks depending on whether the employer is considered a ‘small business employer’. A small business is defined as any business with less than 15 employees and these businesses fall within the scope of the Small Business Fair Dismissal Code (Code). The Code permits employers to dismiss an employee without notice or warning if the employer believes that the conduct was serious enough to justify immediate dismissal, including occupational health and safety procedures.

In line with this, section 385 of the Fair Work Act 2009 (Cth) provides that a person has been unfairly dismissed if it was “harsh, unjust and unreasonable”.

Summary dismissal refers to instant dismissal or dismissal without notice. Often, serious misconduct must be alleged in order to justify a summary dismissal.

Does breaching a Public Heath Order justify a summary dismissal?

In Ms Rebecca Fitzgerald v TLB Assistance Pty Ltd [2020] FWCFB 6541, former employee Ms Fitzgerald was summarily dismissed due to what the employer believed was serious misconduct. The employee, who was a support worker, had travelled to regional Queensland in the early days of the COVID-19 pandemic in breach of Queensland health guidelines.

The evidence presented by the employer included:

• upon being advised that Ms Fitzgerald had travelled to Hervey Bay, the employer immediately felt sick with dread and fear;
• the employer considered that Ms Fitzgerald had placed her and the entire team at significant risk;
• Ms Fitzgerald was reckless and dangerous in her actions;
• the employer was very concerned that she may have contracted something from Ms Fitzgerald; and
• the employer considered Ms Fitzgerald’s actions amounted to serious misconduct and did not wish to give her notice of dismissal.

Given that the level of risk to occupational health and safety was ‘very high’, it was found that the small business employer had “reasonable grounds” to summarily dismiss Ms Fitzgerald in accordance with the Small Business Fair Dismissal Code and the termination did not amount to unfair dismissal.

Next Steps

A trend in case law suggests that employers are able to justify dismissing employees without notice for breaching COVID-19 orders. However, questions arise as to how substantive the risk to public health and safety must be to warrant instant dismissal.

If you’re an employer unsure about how to manage employees disregarding public health orders, or you are an employee recently dismissed, contact the employment law team at Antunes Lawyers on (02) 9964 0499 to discuss your options today.