The pandemic turned all our lives upside down, and one of the ways it did this was in the way we worked. As we know, in many industries, workers began working from home to help prevent the spread of COVID-19. But as we continue to try to adapt to ‘COVID normal’, is it time for our workers to fully return to their original workplaces?

A recent survey of 88 businesses, conducted by the Victorian Chamber of Commerce and Industry, found that:

• 42% of staff had returned to the workplace 1 or 2 days a week;
• 25% were back 3–4 days;
• 19% were back full-time; and
• 14% of employees have remained working from home.

For those businesses wanting to get their full workforce back on-site full-time, what are the legal issues?

It depends on whether you are ruling out any work from home or whether you just want the employee to return 3 or 4 days a week rather than 1 or 2.

Refusing an employee’s request to work from home made on grounds of age, disability, or parental and carer responsibilities may expose employers to claims of breach of the Fair Work Act 2009 (Cth) or anti-discrimination legislation. However, the request can be lawfully refused if it doesn’t strike the right balance between your reasonable business requirements and the needs of the employee posed by their family or carer responsibilities or their disability.

Disputes about directions to work on-site

The Fair Work Commission (FWC) has dealt with several disputes about a direction to work from an employer’s premises. It is apparent from these decisions that working from home is not an employee entitlement, even if a person’s job is not customer-facing and does not require mixing directly with other employees. An employer can reasonably insist on employees working at the employer’s premises because it is part of building a functioning business to bring employees together to interact, to maintain a team environment and to ensure work can be properly supervised.

Case study #1

In Lubiejewski v Australian Federal Police (2022), an employee who suffered from anxiety, depression and autism spectrum disorder had applied for permission to work from home for health reasons just before the pandemic hit.

The employee’s primary functions could be performed entirely remotely. He was given permission for some short-term special arrangements but very shortly afterwards he, like millions of others, was directed to work from home. After the lockdowns were over, the employer sought to discuss his capacity for work based on current medical evidence, and to provide him with the support he needed to perform his role. The employee failed to engage in discussions and refused to comply with the employer’s directions to return to the office. After numerous further directions, the employer ultimately terminated his employment on the basis that he had failed to comply with lawful and reasonable directions.

The FWC found it was reasonable for the employer to seek to discuss with the employee what reasonable adjustments may be required for him to work safely, and to request up-to-date medical evidence. Further, the employer had provided seating arrangements consistent with the employee’s psychologist’s advice and had stated they were content to facilitate some work from home, but not on a full-time basis. In these circumstances, the FWC resolved the unfair dismissal claim in favour of the employer by ruling that the direction for the employee to return to the workplace was a lawful and reasonable instruction.

Case study #2

In Cully v Commonwealth (2020), an employee decided to continue to work from home when the shutdowns were over and employees had been directed to return to the office. She also refused multiple specific directions to attend the office and decided only to make herself available to work remotely even though the approval given to the employee for remote working included a specific requirement to make herself available to attend the office when directed. She was back at work for about six weeks before the decision was made to dismiss her because of her previous multiple refusals to follow directions.

The FWC assessed her circumstances as unique: she had health issues relevant to remote working and was the long-term carer for her terminally ill uncle. The FWC also considered employee’s age (64 years) and her substantial length of service (more than 30 years).

The FWC held that the employer disregarded the employee’s personal circumstances, and that therefore the direction for her to return to working at the office was unreasonable and her dismissal was unfair.

As an appeal against this decision was lodged last month, it will be interesting to see whether the FWC will take the opportunity to revisit and reconsider its approach, and take a position consistent with the decision in Lubiejewski v Australian Federal Police.

Case study #3

In Marriott v Baptcare Ltd (2022), an employee successfully worked from home for months in a non-customer facing role. Following Victorian health directives, the employer required employees to provide proof of vaccination status by some critical dates to enable them to return to the workplace. The employee refused and indicated he would not be getting vaccinated. Soon after, he was terminated for failing to follow a reasonable direction and because he could not comply with an inherent requirement of his role.

The FWC decided that the employer’s direction was reasonable but that the decision to terminate the employee’s employment was premature as the employer did not require any of his colleagues to attend the workplace until 3 months after the dismissal. The FWC ruled the dismissal was unfair because the employee had been dismissed before the employer needed him to return to work.