This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…


In this matter the applicant was employed as a catering assistant at an aged care and was dismissed following an incident where he deliberately coughed in the face of a Registered Nurse.

It was alleged that the applicant acted this was as he was annoyed that he needed to have his temperature taken for COVID-19 reasons prior to commencing work. The respondent further submitted that the applicant was frustrated that the temperature checking process was taking too long and coughed directly in the nurse’s face to express his dissatisfaction. The applicant had received training in the form of “toolbox notes” concerning the need for strict hygiene measures while at work and that the applicant had signed the notes. The applicant submitted that he coughed involuntarily, and it was too sudden for him to put his hand over his mouth.


The Commission noted that the registered nurse was not an employee of the respondent but rather a contractor and had no personal interest in the outcome of the matter. The evidence of the nurse was compelling and cogent while the evidence of the applicant was not convincing in respect to how he coughed and why he was unable to move away from the nurse to prevent a direct cough on another person. The Commission further noted that the applicant did not immediately apologise and that it was only until later when he was directed to apologise that he reluctantly did so. The applicant’s failure to instantly recognise that his 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.

The Commission accepted that the applicant’s behaviour was inconsistent with all expectations of the employer and posed a potential serious health risk to the residents and employees at the facility and understandably led to a direction that the applicant was to no longer work at the site. The Commission found that applicant had not made out his case that his dismissal was unfair, and as such the applicant’s case was dismissed.