Turbulence over airline’s mask mandate
A former flight attendant claimed that she was constructively dismissed due to her employer’s refusal to accept her medical condition as proof for an exemption to wearing a face mask. Last month, in a jurisdictional argument relating to Ms Jessica Watson’s unfair dismissal application, the Fair Work Commission (FWC) held that it was lawful and reasonable for National Jet Systems (the named Respondent, NJS) to issue a mask mandate directing cabin crew to wear a mask while flying.
Facts
In Jessica Watson v National Jet Systems Ltd [2021] FWC 6182, the applicant, Ms Watson, worked as a flight attendant employed by National Jet Operation Services Pty Ltd (NJOS). NJS and NJOS are part of the Qantas Group and are subject to its policies and procedures.
In response to the COVID-19 pandemic, the Qantas Group mandated all cabin crew to wear face masks, providing a medical exemption procedure for those who were unable to comply. This mandate corresponded with both parties’ legal obligations under relevant State laws to wear face masks. Ms Watson sought an exemption from wearing a face mask on the basis that it made her “extremely anxious” and would have trouble performing her job safely. She also disclosed for the first time her diagnosis of Hashimoto’s Disease and a skull tumour. As an alternative precaution, NJS allowed for Ms Watson to wear a face shield instead of a surgical mask.
NJS received a total of two medical certificates from Ms Watson’s general practitioner stating that she was fit to perform all her duties as a flight attendant. This was deemed to be insufficient evidence of an adverse medical condition that prevented Ms Watson from wearing a face mask or face shield. On 7 May 2021, NJS directed Ms Watson to return to her flying duties and comply with the mask mandate or face disciplinary action up to or including termination.
Her disclosure of these medical conditions triggered an internal investigation where NJS scheduled an independent medical examination (IME) to further investigate if she did in fact have a medical condition that warranted an exemption. There was also a legitimate concern about her ability to comply with emergency procedures such as using an oxygen mask or fire hood if necessary. While NJS considered whether Ms Watson’s medical conditions impacted her ability to perform the relevant requirements of her role, she was given the option to proceed with ground-based non-safety critical work or not attending work on full pay. Ms Watson did not attend the IME, nor did she present to work.
On 13 May 2021, NJS received a letter from Ms Watson’s lawyer stating that the mask mandate was a substantive variation of Ms Watson’s employment contract which amounted to a repudiation of the employment contract. It also stated that the mask mandate was discriminatory. The letter emphasised that NJS’ actions left Ms Watson with no choice but to resign, meaning that she was constructively dismissed from her employment.
NJS disagreed, stating that Ms Watson was never dismissed. Instead, she was advised to confirm whether she wishes to resign or otherwise comply with the IME direction.
The FWC decision dealt with how and when Ms Watson’s employment ended, and whether she was entitled to bring the unfair dismissal claim.
Decision
The FWC was satisfied that the mask mandate was a lawful and reasonable direction, having regard to the transmission of COVID-19 and the medical evidence and guidance from health authorities. NJS was able to clearly document its exemption process that provided for the reasonable adjustment of wearing a face shield instead.
The FWC also agreed that NJS was unable to conclude that Ms Watson had a valid medical exemption from the medical certificates alone. This was exacerbated from her refusal to cooperate with the IME direction. It was held that NJS was entitled to obtain accurate and specific information regarding Ms Watson’s medical conditions to assess whether she was fit for aviation work in the event of an emergency. The FWC placed emphasis on the importance of preserving the safety and reputational risk of the company.
Ultimately, the FWC was satisfied that Ms Watson’s resignation was voluntary and that NJS had not engaged in discriminatory conduct, bullying, or harassment which forced her to resign. The letter from NJS on 7 May 2021 gave Ms Watson the option of either working as directed or attending further medical examinations to determine the extent of her medical conditions. She chose to do neither of those things, but instead instructed her lawyer to communicate her resignation. Therefore, it was held that the letter was not a repudiation of her employment contract, and the unfair dismissal application was rejected given that Ms Watson had not been dismissed.
Take Home Messages
Employers should always ensure that they are discharging their work health and safety obligations to employees and other persons in the workplace. In the context of the COVID-19 pandemic, a face mask policy that sets out requirements for staff should be prioritised, in the interests of preventing the potential consequences of COVID-19 transmission. Employees are obligated to comply with such directions, provided they are lawful and reasonable, unless relevant exemptions apply.
This decision reiterates that employers are entitled to seek further details in respect of an employee’s medical condition to determine whether a valid exemption from wearing a face mask applies, if required.
Should you have any queries in relation to this article, or should you wish to access a face mask policy, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Virginia Liu on +61 8 8210 1279 or vliu@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.
