An employee who was dismissed for not wearing a mask at work has been reinstated by the Employment Relations Authority, on an interim basis, pending a full hearing later this year. The determination released on 15 July 2022 is the first to deal with this issue and it sends a strong message to employers that any dismissal for failing to comply with a mask policy will need to be based on clear evidence and a robust process.
The case was brought by an employee of Hexicon (N.Z) Limited who sought name suppression claiming there was a significant risk that he would be exposed to “public opprobrium” if his name was published. He said that this would affect his health and safety, and future employment opportunities. Given the strong views about mask wearing in the community, the Authority accepted these arguments and granted suppression – the employee is referred to as CAE.
CAE was employed by Hexicon in the position of chemical process operator at the company’s Hornby site. His employment was terminated on 8 February 2022 because he did not wear a face covering in breach of the site rules.
The company introduced the mask wearing policy after conducting a risk assessment process in accordance with the Ministry of Business, Innovation and Employment guidelines. Based on this it determined that there was a high level of risk for operators, such as CAE, who work in close contact with other operators in an indoor environment for periods of up to 40 minutes at a time. Eight out of eighteen operators were assessed as being at high risk of severe illness due to COVID-19, which resulted in an increased risk rating.
The new site rules required the wearing of a face covering (surgical or cloth mask) in any communal facilities, and where the employee was interacting with any person outside of their own work bubble.
CAE did not wear a mask to work after the policy was introduced claiming in a letter to his employer that he was not able to wear a face covering because it made him feel anxious and panicky. He said that he struggled to breath after periods of time. It appears that the company approached CAE’s claimed disability with some suspicion, including because he wore a full-face canister mask (respirator) in his role without issue.
Hexicon wrote to CAE directing him to wear a face covering and asserting that this was a lawful and reasonable instruction. CAE was told that if he continued to refuse to do so, this may result in disciplinary action including dismissal. The letter also requested medical information relating to CAE’s condition.
CAE’s representative claimed that the instruction was not lawful and reasonable as he had a disability that precluded him from wearing a mask, and the policy was discriminatory on this basis. CAE also offered to provide a medical certificate to support his claim to have a physical or mental illness, but said that the company’s request for medical information went too far and was intrusive.
Following various communications, the company issued a preliminary decision advising that if CAE was prepared to wear a face covering as directed, he could return to work and receive a written warning. The alternative was summary dismissal. CAE provided feedback on this letter, including repeating an offer to have a daily rapid antigen test and to wear a face shield. Ultimately the company concluded that these measures were insufficient and dismissed CAE.
In determining that CAE had an arguable case for unjustified dismissal, the Authority acknowledged the employer’s obligation to take reasonably practicable steps to mitigate risks to its employees under the Health and Safety at Work Act, but found that it was arguable that there were accommodations that could have been made to mitigate the risk and therefore dismissal was premature. The Authority also took into account the fact that the employer had not undertaken an individual risk assessment which considered the risk of one person not masked and the wearing of a face shield, as requested by CAE’s representative.
The Authority considered the effect of the COVID-19 Public Health Response (Protections Framework) Order which provides that a person is not required to wear a “face covering or medical-grade face covering if they have a physical or mental illness or condition or disability that makes wearing a face covering unsuitable” or if they “have an exemption pass issued to them under [the Order]”. In this case CAE did have a valid mask exemption issued by the Ministry of Health by the time of his dismissal, however the Authority found that doubt continued to exist in Hexicon’s mind about CAE’s disability which “impacted and flavoured the decision making”.
In ordering interim reinstatement, the Authority directed that CAE could either be returned to the payroll, or if he was to attend the workplace it would be on the condition that he wore a face shield, took a daily rapid antigen test, observed strict handwashing standards, and reported and stayed away from work if he developed any COVID-19 symptoms.
The decision is a temporary one, pending a full hearing of the case. In its concluding remarks, the Authority sounded a note of caution that this was the first case to come before it concerning mask exemptions, and that the public health benefits of mask wearing are the subject of extensive health and scientific research and data. When it comes to make its full decision, the Authority will need to weigh up the benefits of compulsory mask wearing in workplaces against the potentially discriminatory impact for people who have a legitimate medical reason for not wearing a mask.
One point that this case makes clear, is that an employer cannot simply dismiss an employee for failing to comply with a mandatory mask policy. The employer will be required to run a fair process and consider all of the alternatives, prior to making a decision to dismiss.
