Fair Work Commission upholds sacking of man who coughed on Sydney aged care nurse
The caterer took his former employer to the Fair Work Commission but lost after a judge accepted he deliberately coughed on the nurse because he grew impatient when she tried to take his temperature at the start of his shift.
Police & Courts
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A caterer who was fired after deliberately coughing on a nurse at an aged care home during the height of NSW’s coronavirus outbreak has lost an unfair dismissal case in a landmark decision.
Hedayat Hooshmand, 64, had been employed by Cater Care for almost seven years and was based at Manly’s Uniting Wesley Heights when he lost his job in April over the incident on March 27.
Mr Hooshmand took his former employer to the Fair Work Commission but lost after Deputy President Geoffrey Bull accepted he deliberately coughed on nurse Carole Lawler because he grew impatient when she tried to take his temperature at the start of his shift.
Ms Lawler told the court she was “horrified” that Mr Hooshmand could have started a virus outbreak at the aged care facility, which has 121 residents including those considered “high risk” and in palliative care.
“While taking the temperature of a Cater Care employee (he) coughed while I was facing (him),” she said.
“(He) made no effort to move back or cover (his) mouth or to apologise.
“I felt angry and then told (him) not to cough in my face and that he had made no attempt to cover his mouth.”
Mr Hooshmand later received a termination letter stating he deliberately coughed in Ms Lawler’s face because he was annoyed he needed to have his temperature taken before commencing work.
He conceded he did cough but he argued it was not a “deliberate action” and the allegation he coughed directly at her “was not correct”.
However, Mr Bull accepted Ms Lawler’s “compelling” evidence and said Cater Care, which was represented by lawyer Allison Lenard, was justified in firing him because he did not take evasive action or immediately apologise after the cough.
“I am satisfied that Mr Hooshmand engaged in the conduct alleged and that this provided (Cater Care) with a valid reason for the dismissal,” the judge said.
“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.
“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.”
Barrister Stephen Lawrence, a host on The Wigs law podcast, told The Daily Telegraph outside court it would have been difficult to fire someone over a cough before coronavirus hit NSW.
“Prior to the pandemic, it’s difficult to imagine as a general position that coughing at someone without any other known circumstance of disease … would support a dismissal,” he said.