A Cater Care Australia Operations Pty Ltd part time employee who coughed in the face of a nurse who was taking his temperature, challenged their termination claiming that the cough was not intentional.

The Fair Work Commission upheld the dismissal stating that whether the cough was intentional or not, the employee failed to take any evasive action to turn away from the nurse, cover his mouth or move away.  In addition, it was found that the employee failed to immediately apologise or even recognise that this conduct was serious and in breach of the facilities policies and procedures during the pandemic.

It was further alleged that the employee coughed deliberately due to frustration with the time the nurse was taking to record the temperature.

Even after seven years employment, the employee was terminated based on serious misconduct after being provided with an opportunity to respond to the allegation in a disciplinary meeting evidencing a due process was followed.

It was found that even though the employee had not received any previous performance warnings, they had been educated on the hygiene procedures relevant to the current pandemic period and as such the behaviour constituted an unacceptable high risk to the residents and staff at the aged care facility.  Cater Care proposed that the continuation of the employee’s employment would be untenable.

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