The Fair Work Commission has upheld that the dismissal of an employee was not ‘harsh, unjust or unreasonable’ under s 385 of the Fair Work Act 2009 (Cth), after the employee refused to complete an internal COVID-19 survey by his employer that requested the supply of dates and locations of personal travel plans within the next six months. The employee alleged that the request for information was a breach of the privacy protections for health information within Schedule 1 of the Privacy Act 1988 (Cth). The protection of health information is defined within s 6, however, the employer was not requesting any protected medical records.

The employer argued that the measures met its obligations to ensure the health and safety of its workers under s 18 of the Work Health and Safety Act 2011 (Qld) and that workers had duties under s 28(c) to comply with and follow reasonable policies and procedures for its COVID-19 Management Plan.

Commissioner Simpson outlined that the employee failed to ‘follow the lawful and reasonable direction because he had incorrectly determined for himself that it was unlawful’. Procedural fairness was upheld throughout the dispute by the employer. The application was dismissed.

The decision of Fair Work now provides guidance for Australian employers when handling disputes with employees that are refusing to engage in COVID-19 Management Plans. 

Case note: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2020/3324.html?context=1;query=work%20health%20and%20safety;mask_path=