This is a case note on when a cough during COVID-19 can lead to an unfair dismissal? See: Hooshmand v Cater Care Australia Operations Pty Ltd  FWC 4371
On 27 March 2020, as the risk of a COVID-19 pandemic in Australia became heightened, Mr Hooshmand (‘the employee’) arrived to work for Catering Care Operations Pty Ltd (“Cater Care”). He had been employed with Cater Care for over six years and was based at Uniting Wesley Heights aged care facility in Northern Sydney.
The aged care facility had just closed for all visitors. Further, all Catering staff were to undergo temperature checks upon arrival with a registered nurse prior to commencing their shift.
The account of the nurse was that, as she was conducting the check, the employee coughed deliberately in her face without covering his mouth or turning away. This was apparently a response in frustration as to how long the temperature check was taking. The employee did not apologise at the time of the incident. The nurse – who was not wearing a mask at the time – felt violated, offended, and concerned for the health and care of the residents.
The staff at Cater Care, including Mr Hooshmand, had two weeks earlier received training on preventing the spread of the disease. This included directions to, “cover their cough and sneeze with bent elbow or disposable tissues…”
On 30 March 2020, the employee attended a show-cause meeting with Cater Care to respond to the nurse’s complaint. He could bring a support person to this meeting.
Nevertheless, on 3 April 2020, the employee was dismissed from his employment.
The Unfair Dismissal Claim
The employee made an application to the Fair Work Commission alleging that his dismissal was unfair according to provisions in the Fair Work Act 2009.
It was the employee’s position, among other things, that: he had coughed involuntarily; there was not enough time to cover his mouth or take evasive action; he did not in fact open his mouth when coughing; and, the nurse did not appear upset at the time. He also noted that he had apologized to her several hours later.
Importantly, Deputy President Bull of the Fair Work Commission found the nurse to be a credible witness while the employee’s account of the events was considered unconvincing. While there were no eyewitnesses, there were reports of staff overhearing the nurse making comments about the cough to the employee. The apology –several hours later – was viewed as ingenuine.
Deputy President Bull highlighted the particular importance of COVID-safe practice within the aged care sector and stated, “such behaviour is unacceptable in a high-risk environment such as the applicant’s work site and that it would be untenable for him to continue in his employment in such an environment”.
The deliberate coughing in the nurse’s face was found to be a valid reason for his dismissal and therefore his claim was dismissed.
An open Cough during COVID is cause for concern
It’s always important to cover our mouth’s whilst coughing or cough into our elbows. Let’s do what we can to keep our workplace safe.
Written by Luke Borgert
 Fair Work Act 2009, section 385; 394.