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Misconduct Dismissal Due To COVID-19


Misconduct Dismissal Due To COVID-19

Over the past year, the Fair Work Commission in Victoria has been inundated with claims associated to COVID-19. Asnew policy and procedures that employers have enacted in order to create a COVID-Safe environment. Unfortunly some employees also use the pandemic as an excuse to take advantage of employees. This includes dismissing employees falsely for misconduct. This has led in a increase in unfair dismissal and general protection claims at the FWC. Misconduct Dismissal Due To COVID-19 takes various forms.

Was unfair dismissed

A casual disability worker in Victoria claimed she was unfairly dismissed by her employer. This is when she breached the temperature check procedure after recording a high temperature but continued to commence her shift. The Fair work Commission found that this was a valid reason for dismissal and was duly satisfied that the dismissal was not harsh, unjust or unreasonable. Fair Work Victoria, presided by Deputy President Mansini, heard the case of Fesshatsyen v Mambourin Enterprises Ltd [2021] FWC 1244 on 9 March 2021.

Context is important

Context is important when it comes to workplace disputes. In 2021, Victoria suffered its fair share of COVID-19 cases and outbreaks in health facilities. The media scrutinised the public health response to a great extent. Therefore, when Company’s put in place protective measures against COVID-19, Fair Work in Victoria found no reason for there to been an unfair dismissal case. As the worker would have willfully been aware of the need to comply with such regulations and to take precautions when working in a vulnerable setting.

You know you cannot act this way. This is a very simplistic way of looking at what goes on in the workplace. some employers are like crocodiles sitting on the edge of the river. All the patience in the world, watching you. Then they attack by stealth, quietly and before you know it your dismissed and out the door. So do not put yourself at risk.

Must establish whether serious misconduct was willful or deliberate

The Fair work Commission in Victoria must establish whether serious misconduct was willful or deliberate. Is inconsistent with the continuation of employment with the employer.[1] This is because the disability worker’s contract stipulated terms that required its employees to adhere to certain health and safety policies. The FWC was satisfied that this constituted a valid reason for dismissal in regards to conduct and was not harsh, unjust or unreasonable and therefore, the Applicant was not unfairly dismissed.

Lack of insight into the conduct and failure to take responsibility

Another case in Victoria, where serious misconduct resulted in a dismissal was the case of Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341. The Applicant was dismissed in February 2020 for serious misconduct involving inappropriate conduct of a sexual nature towards student both physical and verbal. Furthermore, the difference in this case was that the Applicant had previously received warnings for conduct of a similar nature when he posted on social media.

The Commission did find that the investigation process was unfair and did not comply with procedural fairness. However, Fair Work Victoria, found that the Applicant’s ‘lack of insight into the conduct and failure to take responsibility’ outweighed the procedural unfairness. Therefore, the dismissal was concluded to be neither harsh, unjust nor unreasonable.

Standard of proof

It should also be noted that as per Briginshaw v Briginshaw, the standard of proof remains to be on the balance of probabilities. However, the more serious the alleged misconduct, the stronger the nature of the evidence must be.[2] (Many employees think the company need the video, the confession, the DNA like on television this is the criminal test.)

In the case of the disability worker, the Applicant was summarily dismissed. A summary dismissal takes place when the misconduct is extremely serious. The dismissal then has the capability to be effective immediately without notice or payment in lieu of a notice period.

In certain circumstances, Fair work Commission may look to the proportionality of the misconduct in relation to a summary dismissal. In the case of Fesshatsyen v Mambourin Enterprises Ltd [2021] FWC 1244, the court was satisfied that in proportion to the misconduct, a summary dismissal was not harsh, unjust or unreasonable.

Sometimes the employer behaviors’ in such a way, to get a reaction from you. You react, swear, get loud, walk forward. Then they dismiss you for serious misconduct. When all you wanted to do was defend yourself, perhaps just trying to make a point.. Some employers let others or the manager to act in such a way to get you to react. Don’t react, go to HR, you have rights at the Fair work Commission, call us.

Tougher approach to misconduct

Furthermore, the two recent decisions in Victoria by the Fair work Commission suggest that the Commission is taking a tougher approach to serious misconduct. That this may in turn result in more dismissals from serious misconduct investigations. Especially in industries where there is a high standard of duty of care towards clients, students or patients. Therefore, remorse and responsibility, two moral values play a significant role in the legal outcomes of serious misconduct dismissals in Victoria.


I hope this brief article Misconduct Dismissal Due To COVID-19 has made you more aware of pitfalls of serious misconduct and current trends. It goes without saying being dismissed for serious misconduct can be hugely determinable to your career and reputation. As the pandemic progresses, everybody is stressed, cranky, uncertain. I have notice that what a lot of employers in the past would tolerate, not care less about, employees are now dismissed. Peoples fuses are getting shorter.

Of course the employer has the financial incentive to use serious misconduct to dismiss employees. They don’t have to pay notice, long service leave. In many cases then also refuse to pay relocation cost because you breached the employment contract. Disgraceful behaviour. Want further clarification?, or confused?, concerned for your job?, your career?, give us a call, its free 1800 333 666 , we are happy to assist.

We are A Whole New Approach, P/L, we are not lawyers, but the nations leading workplace advisors. We are here for you, anything to do with the workplace call us. Fair work matters, abandonment of employment, sacked, bullied. we are experienced, prompt, honest, we keep it real. All states, NSW, Vic, QLD, SA, WA, Tas.

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[1] Edwards v Justice Giudice [1999] FCA 1836

[2] Briginshaw v Briginshaw [1938] HCA 34

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