The Fair Work Commission (FWC) has ruled Menarock Aged Care Services (Shepparton) was wrong in instantly sacking without notice an employee who lowered her face mask below her nose, as it had not warned the employee a failure to wear her mask properly could result in summary dismissal.
Angela Daddona was employed as a Food Services Assistant at Menarock LIFE Shepparton, in northern Victoria, where she prepared and delivered meals and drinks to residents. She had been employed for six years and did not have a record of disciplinary action.
She claimed unfair dismissal and her case was decided by the FWC.
In December 2021, auditors from the Aged Care Quality and Safety Commission were conducting an assessment of the facility and the clinical care manager told staff and reminded them to wear their personal protective equipment correctly.
After breakfast, Ms Daddona was conducting her rounds with the tea trolley when she walked past the Aged Care Quality and Safety Commission auditor while wearing her mask below her nose.
Ms Daddona said she had left the room of a resident, who was hard of hearing, and she had lowered her mask so that he could hear her speak. She acknowledged her mistake, but added it was not a deliberate act.
A week later, she was dismissed “effective immediately” for serious misconduct. Menarock Aged Care Services stated Ms Daddona was aware of the requirement to wear personal protective equipment correctly, had deliberately failed to adhere to the policy, and thereby placed the health and safety of residents at risk.
The FWC determined Ms Daddona’s misconduct was serious, and she had put the residents’ health at risk and contributed to Menarock receiving adverse findings in the audit; however, the Commission found the decision to terminate her employment was disproportionate.
She had not been warned that a failure to wear her mask properly could result in immediate dismissal, and Menarock Aged Care Services was ordered to pay her $3,152.84, which represented the notice she would have received if her employment had not been terminated summarily, less a deduction of 10% based upon her misconduct.
