Can I be fired for not wearing a mask at work?
New laws that came into effect this month require people to wear a face mask or face a $200 fine in NSW.
This applies also to people who work in the industries listed below requiring mandatory face masks to be worn.
Mandatory Face Masks
Mandatory face masks in NSW are required in the Greater Sydney area, including the Central Coast and Wollongong in the following locations:
shopping (retail, supermarkets and shopping centres)
public/shared transport (including waiting and travelling)
indoor entertainment (including cinemas and theatres)
places of worship
hair and beauty premises
visitors to residential aged care facilities
gaming areas in licensed premises
staff in hospitality venues
NSW airports, including passenger waiting areas
during a flight, when the plane is
landing at, or taking off from the airport or
flying in NSW airspace.
But what about if you work in the above industries AND you cannot wear a mask?
For the many, and it is many people, face masks are just not an option.
For this reason, there are exceptions to the rule (other than being a child 12 or under).
Adults are also exempt if: –
They have a physical or mental health illness or condition, or disability, that makes wearing a mask unsuitable (for example, a skin condition, an intellectual disability, autism or trauma).
The exemptions are all very well and good, but this does mean that staff personnel would need to disclose their personal physical and mental health information, disability and/or trauma to an employer to be exempt from wearing a mask at work.
Of course, a simple medical certificate saying your exempt would be sufficient.
However, what IF it is trauma, what IF you not ready or do not wish to tell medical professionals and therapist yet?
Is simply saying you have trauma enough? The rules are undefined, what about the workplace gossip, or talk about what kind of disability, mental health and/or trauma a work colleague might have?
Thus, the question is are we forcing people with exemptions such as physical or mental health, disability and/or trauma to disclose before they are ready to, just to keep their job!
OR are we now also subjecting trauma victims, people with disability or adversities in their mental health to gossip in the workplace?
Answer may possibly be YES, since as the laws stand at present if you do not disclose or produce a sufficiently signed piece of paper from someone called ‘Doctor’, then your employer can legally give you a lawful direction to wear a mask at work, and you should obey all reasonable and lawful directions at work as part of your duty to your employer.
So, then the question at law becomes if you refuse to disclose or wear the mask can an employer dismiss you?
As an employer can you dismiss an employee for not complying with the current pandemic laws?
The answer is yet to be fully determined. AND many in the legal world and gearing up for what could be a raft of discrimination and unfair dismissal claims to come.
But one thing is clear the Commonwealth unfair dismissal laws currently in Australia will only protect a portion of Australia’s workforce from not wearing masks at work.
Since unfair dismissal laws will only apply to a person who has worked either fulltime or parttime as an employee for 6 months, or 12 months if the business is considered a Small Business employer (fewer than 15 people);
An award wage applies (even if paid more than the wage) or enterprise agreement;
Gross earnings are under $153,600 as of July 2020.
Leaving out a lot of Australia’s casual workers to fend for themselves.
PLUS, the dismissal MUST be considered harsh, unjust, or unreasonable by the Fair Work Commission.
Whether not wearing a Mask will be considered harsh, unjust, or unreasonable will depend on the current meaning of harsh, unjust, or unreasonable within the Law.
At present there are various factors that will be considered by the Fair Work Commissioner to determine whether the dismissal/termination was harsh, unjust or unreasonable, such as whether there was a valid reason for the dismissal related to your capacity or conduct (including its effect on the safety and welfare of other employees); – this may be problematic in a pandemic and law designed to protect all other employees, but it is not the only consideration to be considered. The Commissioner will also consider: –
whether you were notified of that reason for the dismissal;
whether you were given an opportunity to respond to any reason related to your capacity or conduct;
any unreasonable refusal by your employer to allow you to have a support person present to assist at any discussions relating to dismissal;
if the dismissal related to unsatisfactory performance by you—whether you had been warned about that unsatisfactory performance before the dismissal;
the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; ;
the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and/or
any other matters that the Fair Work Commission will consider as relevant.
So, for employees and employers the answer it seems will depend heavily on the safety of other employees and any other matters that the Commission considers relevant. Will discrimination and traumatic stress suffice? this is yet to be determined.
Also, the statutory time limits will apply as application for employment unfair dismissal MUST be lodged with 21 days after the dismissal took effect.
There will of course be other laws casual workers and higher income earners could rely on in the coming pandemic and post pandemic legal era such as:
Employment discrimination law
Contract law depending on the terms in your contract.
The employment laws are changing in this pandemic and post-pandemic ear stay tuned for further employment law blogs in the next coming months.
If you or someone you know has experienced Adverse Action, Dismissal or are simply seeking employment or criminal law advice contact Rep-Revive Criminal & Employment Lawyers® on (02) 9198 1996 for consultation.
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NB: We will refund the $160.00 paid fee after a signed employment law cost agreement for legal services is executed.