Is an employee's failure to comply with an employee's mandatory PPE policy ground for dismissal?

Yes, but only if the dismissal is not harsh, unjust or unreasonable.

In a recent decision (Angela Daddona v Menarock Aged Care Services (Shepparton) Pty Ltd) [2022] FWC 1184 (17 May 2022)), the FWC confirms that the failure of an employee to comply with its employer’s PPE policy (to properly wear her mask) constituted misconduct and was a valid reason for dismissal.

The aged care facility employee sought to challenge the validity of the dismissal on grounds that the company’s PPE policy was inconsistently applied (previous instances of breaches by other staff with warnings given) including that the employer failed to provide staff with the Victorian Government Directions mandating the use of PPE.

However, the FWC rejected the employee’s assertion and held that there was a valid reason because:

1. there was a clear requirement that face masks must be worn properly at all times which the employee failed to comply with;

2. the employee was aware of the requirement and understood the importance of the requirement;

3. the employee was reminded on the morning of the breach to comply with the requirement; and

4. the employee signed a daily declaration acknowledging that she would comply with the requirement.

The FWC also considered that the employer took reasonable efforts to ensure that its staff would comply with the PPE requirement through repeated reminders and with the circulation of a memorandum to comply. 

Dismissal must not be harsh

Even though the FWC sided with the employer in finding that there was a valid reason to dismiss, it ultimately found that the dismissal was unfair because terminating the employee without any notice (summary/ immediate termination) was harsh in its circumstances as the employee was not adequately warned that immediate dismissal was a consequence of non-compliance. 

If the employer proposes to dismiss the employee without notice, it must have warned the employees that this would be the sanction for a breach of its PPE policy.

Lessons to learn

To ensure a low-risk approach to dismissing an employee for failing to comply with its PPE requirements, we recommend that employers:

1. put in place a PPE policy;

2. ensure that the policy clearly sets out the requirements, who it applies to and how the employees can comply;

3. ensure that the policy sets out the disciplinary process and the ‘what if’ in the event of a breach;

4. raise awareness of the policy (newsletter, poster, email reminders, daily check-in, implementing daily acknowledgements); and

5. enforce the policy fairly and consistently (this will reduce any potential argument of unfairness and/or preferential treatment).

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