A catering assistant has lost his unfair dismissal claim after being sacked for deliberately coughing on a nurse.
The Fair Work Commission rejected the man’s claim that the cough happened so suddenly that he couldn’t cover his mouth.
As a result, the Commission said he posed a serious health risk, and therefore, ruled the dismissal fair.
Catering assistant worked in aged care facility
The man worked for Cater Care since August 2013.
The company provides catering services to the Uniting Wesley Heights home in Sydney.
The facility houses 121 “high risk” residents in aged care, palliative care or in a nursing home environment.
As a result of the COVID-19 pandemic, the home employed an independent Registered Nurse to check the temperatures of all staff.
On 27 March, as the nurse took the temperature of the catering assistant, he suddenly coughed on her.
The nurse described the incident in a statement to Cater Care management:
“I was asked to take the temperature of all the staff by holding my arm out straight aiming at the temperature (sic) a couple of centimetres from their forehead.
“While taking the temperature of a Cater Care employee they coughed while I was facing them holding temperature (sic) at their forehead.’
“They made no effort to move back or cover their mouth or to apologise.
“I felt angry and then told them not to cough in my face and that he had made no attempt to cover his mouth.”
The worker’s supervisor later told him to apologise to the nurse, however, she said “it did not feel genuine”.
After meeting with the worker and giving him an opportunity to respond, Cater Care subsequently sacked him.
His termination letter accused him of deliberately coughing in the nurse’s face.
Furthermore, the letter said he did it as a result of being annoyed after discovering that he needed to have his temperature taken before starting his shift.
The man then became increasingly frustrated that the process was taking too long, so he coughed directly in the nurse’s face to express his dissatisfaction.
NEXT READ Sick leave
Worker denied cough deliberate
The worker admitted in the Fair Work Commission that he did cough while having his temperature taken.
However, he stated the cough occurred involuntarily and he did not have time to put his hand over his mouth.
He also claimed that while coughing, he did not open his mouth.
Additionally, he told the Commission he believed the real reason for his dismissal involved a workers’ compensation injury that saw him assigned to light duties.
NEXT READ Serious misconduct
Worker received hygiene training
Cater Care argued the employee received training, including written information about the need for strict hygiene measures while at work.
The company showed a document given to the worker advising on COVID-19 safety which stated:
“Cover your cough and sneeze with bent elbow or disposable tissues and use alcohol-based hand sanitiser. Maintain one metre from anyone coughing or sneezing.”
What the Commission found
In the end, Deputy President Geoffrey Bull rejected the worker’s version of events.
“I do not accept that the cough occurred with his mouth closed, nor do I accept that [the nurse] took up to five minutes to take his temperature.
“I am satisfied that [the worker] engaged in the conduct alleged and that this provided the respondent with a valid reason for the dismissal.”
Mr Bull described the nurse’s evidence as “compelling” and noted the worker’s actions made her feel “dirty and violated”.
“It is clear in the evidence of [the nurse] that she was appalled by the incident and concerned for her own health and that of the facility’s residents and staff.”
The Deputy President also criticised the time it took for the worker to apologise, and the insincerity with which he delivered it.
Even taking into consideration the worker’s length of service and his difficulties with English and his limited future job prospects, Mr Bull rejected his unfair dismissal claim.
Finally, he found the dismissal was not related to man’s workers compensation claim.
Worker deserved to lose his job
Industrial advocate Miles Heffernan from Dismissals ‘R’ Us said the worker deserved to lose his job.
‘Public health is always a priority, especially during this pandemic, and even more so in aged care homes,” he said.
“We are all making adjustments to ensure safety in the workplace and in the community, and that includes having our temperature taken or wearing face masks.
“To deliberately cough on a health worker is not only disgusting, it is also potentially dangerous.
“The Fair Work Commission will not tolerate this sort of offensive conduct, so it is not surprising it rejected this unfair dismissal application.”
Contact our team at Dismissals ‘R’ Us on
To connect with us, please follow us on