A Property Manager, who had been employed for 4.5 years, conducted inspections of rental properties for her employer. She had been directed by text message to “make sure that you are wearing masks for all inspections”.

A tenant called the employer to complain that the Property Manager had attended an inspection unmasked.

Five days’ later, the Property Manager tested positive for COVID-19. She admitted, when asked, to not having worn a mask during inspections the previous week.

The Property Manager was summarily dismissed and filed an unfair dismissal claim in the Fair Work Commission.

Commissioner Williams stated that employees bear the onus of reading and acting on text messages when commonly used, “just as it is if the employer had sent them an email or a letter”.

The Commissioner found that the Property Manager either didn’t read the text message or she’d read it but had forgotten about it. Therefore, the Property Manager’s failure to wear a face mask at property inspections was not “wilful or deliberate conduct” that would justify summary dismissal.

The summary nature of the dismissal was harsh, and for that reason only, it was unfair.

As reinstatement was not appropriate, the employer was ordered to pay the Property Manager $1621.87 (3 weeks’ pay).

Take Out Point: Serious misconduct justifying summary dismissal requires there to be wilful or deliberate conduct. If an employee does not deliberately and knowingly refuse to carry out their employer’s lawful and reasonable direction, the dismissal may be considered harsh. Making a payment in lieu of notice may avoid time consuming and expensive FWC proceedings.

See: Deidre Te Wano v Just Property Management Pty Ltd [2022] FWC 2493 (19 September 2022) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2022/2493.html

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