A s.394 – (Application for unfair dismissal remedy) by Hedayat Hooshmand against Cater Care Australia Operations Pty Ltd has been rejected by Fair Work Deputy President Bull in Sydney on 20 August 2020. Application for an unfair dismissal remedy. Deliberate coughing in face of Registered Nurse. Conduct posed a potential serious health risk, dismissal not unfair. [1] This matter was heard before me on 10 August 2020, and on the following day I delivered my decision on transcript. As advised at the time, a published decision would issue; this is now the published version of the decision, edited for style and clarity. 1 [2] Mr Hedayat Hooshmand, claims he was unfairly dismissed by his employer whom he named in his Form F2 as Cater Care. The response filed by the employer, names the employer as Cater Care Australia Operations Pty Ltd (Cater Care). As no issue was raised by the employer in respect of the incorrect naming of the employer, the application is amended pursuant to s.586 of the Fair Work Act 2009 (the Act) to reflect the correct employer name. [3] Despite directions having been issued and follow-up emails from my Chambers the applicant did not submit a witness statement or written submissions in support of his application. Although a one-page statement addressed ‘To Whom It May Concern’ undated and signed by an Armin Hooshmand, was received together with a number of attachments and medical literature said to be relevant to the application. [4] Mr Hooshmand represented himself and was assisted in the presentation of his case and during the delivery of the decision on transcript with a Persian interpreter 2 provided by the Fair Work Commission. Ms Allison Lenard, Group Workplace Relations Manager, represented the respondent. [5] Mr Hooshmand was employed as a Catering Assistant by Cater Care at an aged care location known as Uniting Wesley Heights. [6] It appears, although little details were provided by the respondent, that the respondent provides catering services to Uniting Wesley Heights. The facility has 121 residents either in an aged care or a nursing home environment with many residents considered as high risk and others in palliative care. [7] The applicant has been employed by the respondent since August 2013. The applicant’s employment was covered under the enterprise agreement known as the UnitingCare Aged Care Residential & Community Services Agreement (NSW) 2011-2013. 3 [8] At the time of the applicant’s dismissal he was working on a part-time basis. [9] The applicant was dismissed on 3 April 2020, said by the employer to be due to the serious nature of conduct he engaged in on Friday 27 March 2020. [10] In dealing with unfair dismissal applications the Commission must take into account the factors listed at s.387 of the Act. The first being whether there was a valid reason for the dismissal related to the employee’s capacity or conduct including its effect on the safety and welfare of other employees. Valid reason [11] Mr Hooshmand claims that his dismissal was unfair on the basis that the allegation that he directly and deliberately coughed in the face of a Registered Nurse who was taking his temperature at the time for COVID-19 purposes was not correct. While Mr Hooshmand acknowledged that he did cough while his temperature was being taken, it was not a deliberate action taken by himself. [12] Cater Care states that a Ms Stephanie Leila Residential Services Manager at Uniting Wesley Heights advised the respondent in an email dated 26 March 2020, and sent to Mr Darren Osmond, the respondent’s Operations Manager of the following: “From Friday 27 March, tomorrow we are closed to all visitors, but you are considered a contractor. Monday to Friday: Most early morning staff will need to go to the nursing home to have their temperature checked by the registered nurse. Staff who come to work later can come to the office and I can check their temperature between 8.30 am and 4.30 pm approximately. Weekend: All staff will need to go to the nursing home and have their temperature checked by the registered nurse.” [13] The respondent submits that a valid reason for the applicant’s dismissal existed and that it was sound, defensible and well-founded. The termination of employment letter dated 3 April 2020 refers to a meeting held on the 30 March 2020, which was also attended by Mr Hooshmand’s son who acted as his advocate; the meeting was called to discuss the incident on the 27 March 2020. [14] The termination letter states that Mr Hooshmand deliberately coughed in the Registered Nurse’s face as he was annoyed after discovering that he needed to have his temperature taken before commencing work. [15] He became increasingly frustrated that the process was taking too long and wanted the nurse to speed up the process and coughed directly in her face to express his dissatisfaction. [16] The reason for Mr Hooshmand’s dismissal was best explained in the evidence given by telephone by the Registered Nurse herself. [17] Ms Carole Lawler was not an employee of the respondent but was required to take the temperature of staff at the applicant’s work site. [18] Ms Lawler also provided a written statement dated 31 March 2020, which she addressed to Mr Almond (the respondent’s Operations Manager) in the following terms: “I was asked to take the temperature of all the staff by holding my arm out straight aiming at the temperature (sic) a couple of centimetres from their forehead. While taking the temperature of a Cater Care employee they coughed while I was facing them holding temperature (sic) at their forehead.’ They made no effort to move back or cover their mouth or to apologise. I felt angry and then told them not to cough in my face and that he had made no attempt to cover his mouth. Andrew was informed and soon after he came to the office to apologise to me, but it did not feel genuine.’ [19] Cater Care submitted that Mr Hooshmand had received training in the form of tool box notes concerning the need for strict hygiene measures while at work. [20] A document titled Monthly Safety Tool Box 10 March 2020 was tendered which contained four pages. At the bottom of the document under the heading ‘Acknowledgement’ was the signature of the applicant. [21] This document has a subheading ‘COVID-19 What to Know and How to Respond’ and commences by stating “COVID-19 (coronavirus) is now having a direct impact upon some Australian workplaces so it is important that we remain appropriately informed and prepared to ensure that we can prevent an outbreak at the Cater Care site.” [22] Amongst the information provided in the document includes a statement in the following terms: “Cover your cough and sneeze with bent elbow or disposable tissues and use alcohol-based hand sanitiser. Maintain one metre from anyone coughing or sneezing.” [23] Mr Hooshmand did not dispute that his signature was on the tool box notes document and stated that the contents had been explained to him by the Chef Manager, Mr Andrew Modernel. [24] Mr Hooshmand, in giving his evidence stated that he did indeed cough while having his temperature taken, however it was not a reason to dismiss him and submitted that the employee’s real reason for his dismissal was that he had a workers’ compensation injury and was on light duties. [25] Mr Hooshmand stated that he was told by the Chef that he needed to get a temperature check and stated that the Registered Nurse, Ms Lawler, took up to five minutes to conduct the temperature check during which he coughed involuntarily and apologised. Mr Hooshmand stated that as the cough occurred involuntarily it was too sudden for him to put his hand over his mouth, but while coughing he did not open his mouth. [26] He stated that the nurse was not angry at the time, but he was later told by his manager that the Aged Care management were not happy and that he should apologise to the Registered Nurse which he did. [27] Mr Hooshmand stated that he had not been frustrated by the length of time it had taken for his temperature check. [28] The incident occurred only in the presence of Mr Hooshmand and Registered Nurse Ms Lawler. Although a statement was tendered of Ms Stephanie Leila, the Wesley Heights Manly Residential Service Manager who stated that while not witnessing the incident she heard Ms Lawler make a comment about not coughing in her face and that Ms Lawler was very upset all day as a result. As a consequence of this, Ms Leila instructed the respondent that Mr Hooshmand was not to remain working at Wesley Heights. [29] The respondent called a number of its own employees to provide evidence which revolved mainly about the investigation of the incident and the investigation’s conclusion. However, the evidence of Registered Nurse Ms Carol Lawler was the most relevant put forward and was delivered in a compelling manner. [30] Ms Lawler stated that the temperature test was done in under a minute and that Mr Hooshmand while looking at her had coughed directly at her. She was shocked that he made no attempted to move away and it was particularly offensive as she was not wearing any PPE. Mr Hooshmand did not apologise, nor did he step back and he coughed with an open mouth. [31] Ms Lawler stated that as a Registered Nurse she was not easily phased and put up with a lot as a nurse. But she was horrified with the conduct of Mr Hooshmand and particularly as he did not apologise. [32] Ms Lawler stated that Mr Hooshmand gave the impression that he was being inconvenienced while his temperature was being taken and that his actions made her feel dirty and violated. He did not apologise at the time, although a couple of hours later he did apologise, however she felt this was insincere as it was done with a smirk. Ms Lawler was concerned that Mr Hooshmand may have been a COVID-19 carrier which could have instigated an outbreak at the aged care facility. [33] Ms Lawler is not an employee of the respondent and has no demonstrated vested interest in the outcome of this matter. Her evidence was given in a compelling and cogent manner whereas the evidence of Mr Hooshmand was not convincing in respect to how he coughed and why he was unable to either move away from Ms Lawler or take any action to prevent a direct cough on another person. I prefer the evidence of Ms Lawler where it contradicts that of Mr Hooshmand. I do not accept that the cough occurred with his mouth closed, nor do I accept that Ms Lawler took up to five minutes to take his temperature. [34] I further accept, having heard Ms Lawler, that the applicant did not immediately apologise and that it was only until he was later instructed to do so, that an apology was reluctantly provided. Although, Ms Lawler did not accept it as being sincere. [35] I am satisfied that Mr Hooshmand engaged in the conduct alleged and that this provided the respondent with a valid reason for the dismissal. Other s.387 considerations [36] In addition to establishing whether a valid reason exists the Commission is required to consider a number of other factors which I will now address. [37] There is no issue that Mr Hooshmand was advised of the reason for his dismissal. It is contained in the rather lengthy written dismissal notice and was told to him at a meeting held on 3 April 2020. [38] Mr Hooshmand was provided with an opportunity to respond to the allegations at the meeting conducted on 30 March 2020 at which he provided his response together with his support person. Mr Hooshmand was then advised that he had a further 24 hours to provide any additional information before a final decision would be made in regard to what action may be taken. [39] In the interim the applicant did not return to work at the Wesley Heights Aged Care Centre site. [40] The applicant was allowed and took the opportunity to have a support person at the show cause meeting on 30 April 2020, which lasted for approximately 45 minutes. The applicant had a support person at the dismissal meeting of 3 April 2020. [41] While the incident did not involve a previous warning, Mr Hooshmand had been advised of the strict hygiene requirements at his workplace as a result of the COVID-19 pandemic. [42] The respondent is a large organisation and is expected to follow the appropriate procedures relating to Mr Hooshmand’s dismissal and by and large that occurred. It is also evident that the respondent had available at its disposal human resource expertise to ensure this happened. [43] I have taken into consideration Mr Hooshmand’s length of service and his difficulties with the English language and his limited future job prospects. [44] Mr Hooshmand did advise that he is currently on workers’ compensation and is receiving 80 percent of his income, although his weekly payments are said by him to cease on the 24 September 2020, although the employer has a different understanding in that it understands the payments will continue until 2021. However, this is a matter that will be followed up by the employer with the workers’ compensation insurer. [45] Mr Hooshmand accepts that the conduct occurred although he disputes its deliberate nature and his ability to have taken any preventative measures. [46] Whether the cough was deliberate or involuntary, Mr Hooshmand did not provide any plausible explanation as to why he took no evasive action, which could have occurred in a split second, to either turn his head, attempt to cover his mouth, or move away from Ms Lawler. This, together with Mr Hooshmand’s failure to immediately apologise or instantly recognise that the conduct was a serious incident that was contrary to the known hygiene procedures in an aged care facility during a pandemic, raises the incident in its seriousness exponentially. [47] It is clear in the evidence of Ms Lawler that she was appalled by the incident and concerned for her own health and that of the facility’s residents and staff. [48] I accept the proposition put by the respondent that 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. [49] The behaviour of Mr Hooshmand was inconsistent with all expectations of his employer and posed a potential serious health risk to the residents and employees at Uniting Wesley Heights and understandably led to a direction to the respondent by Uniting Wesley Heights that the applicant was to no longer work at the site. [50] The respondent raised the fact that the applicant had previously been requested by its client to be removed from another site in August 2019. However, the details behind this direction were not expanded upon by the respondent and I have had no regard to the submission. [51] I further do not find that the dismissal was in any way related to Mr Hooshmand’s workers’ compensation claim. [52] For the reasons stated I do not find that Mr Hooshmand has made out his case that his dismissal was unfair, and as such the applicant’s case is dismissed.
