Qantas wins unfair dismissal challenge over mask mandate

unfair-dismissal

Source: Unsplash/Lukas Souza

The Fair Work Commission has dismissed a former flight attendant’s claim that Qantas unfairly terminated her employment after she refused to wear a face mask at work.

Former flight attendant Jessica Watson lodged an application with the Fair Work Commission earlier this year, accusing National Jet Operation Services, a subsidiary of Qantas, of unfair dismissal.

After refusing to wear a COVID-19 mask at work, Watson gave her employer a medical certificate from her general practitioner which stated that wearing a mask “makes her extremely anxious and she finds she has trouble performing [her job] safely”.

However, the Fair Work Commission found that the letter did not contain “suitable evidence of adverse medical conditions” to justify an exemption.

Nicholas Hitchens, principal at Hitch Advisory, tells SmartCompany that Qantas “did everything by the book” in this case, even requesting Watson obtain medical advice from an independent practitioner.

“In our view, employers need to look at their particular circumstances … balancing out the risk of contraction amongst their workforce and their customers and then making a policy either on vaccination or masks on that basis,” Hitchens says.

“If particular employees then want to provide exemption evidence, what the Qantas case tells us is that the evidence needs to be realistic and tied to a condition that actually impacts the ability to wear a mask or be vaccinated,” he adds.

In the case, Watson claimed her employer dismissed her in May this year but Qantas disputed that arguing instead she had resigned on her own initiative.

The Fair Work Commission was presented with a range of communications between Julia Thompson, the Head of Cabin Crew at National Jet Systems, and Watson’s lawyer before making its final decision.

After concluding that Watson provided unsatisfactory medical documentation and resigned on her own accord, the Fair Work Commission ordered that the application be dismissed.

Hitchens says this decision adds to recent case law related to vaccine and mask mandates in customer-facing workplaces, such as aged care and child care.

“In fact, there’s yet to be a case in Australia where what’s known as constructive dismissal as a result of these reasonable, well thought out policies has been found,” Hitchens says.

“As a generalisation, the courts are finding in favor of reasonable policies that do mandate either mask wearing or vaccination.”

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