The COVID-19 pandemic has required many employers to pivot their business and enable their employees to work from home. Employees have needed to learn how to balance work and home life in a completely new way. This has changed not only where employees work but how they work, with reliance on technology and other innovative methods to maintain productivity becoming increasingly important.
While there are benefits to working from home, for many organisations there is a need to have employees return to the workplace in some capacity. With many businesses now contemplating a return to the office, tensions may arise between the needs of the organisation and the desire of employees to continue working from home.
So how do employers transition their workforce back into the office? And what if employees have medical reasons for not wanting to return to the workplace?
This issue arose in a recent case in the Fair Work Commission (Commission), where a long-term employee was found to have been fairly dismissed because he refused to comply with a lawful and reasonable direction to return to the office.
The employee had been employed by the Australian Federal Police (AFP) in its News and Online Services team since 2010. The employee is a person on the autism spectrum. In the view of the Commissioner, this did not form any barrier to his work performance. The employee has a history of anxiety and depression from 2017.
In March 2020, the employee provided the employer with a letter from his psychologist requesting a change to his seating arrangement to better facilitate his work – if this was not possible, the employee requested an opportunity to work flexibly from home. Shortly after this, the pandemic struck and the employee worked from home until he commenced a period of personal leave from 10 August 2020 to 5 January 2021.
Upon the employee’s return to work there were a series of emails relating to the employee’s capacity for work, the expectations for his role and the appointment of a suitable workplace rehabilitation provider. In late March 2021, the employer wrote to the employee explaining that he had been working from home without an approved flexible working arrangement, had ignored several requests to meet with the employer’s Organisational Health team, had failed to attend the office, had ignored communications from his Team Leader and Manager and failed to provide evidence or respond to requests for an explanation as to why he could not work in the office. The correspondence included a direction to the employee that he attend the workplace from Monday to Wednesday and work from home on Thursday and Friday within specified hours each week. The correspondence also warned that failure to comply with the direction could result in the termination of his employment. At this point, the employer considered the psychologist’s advice of March 2020 to be out of date.
Despite the direction, the employee continued to work from home. The employer continued over several weeks to direct the employee to attend the office or otherwise provide a reason as to why he was not able to attend work. The employer issued a total of ten directions to the employee requesting he return to the employer’s workplace.
In late April 2021, the employer gave the employee notice they were considering terminating his employment on the basis that he had continually failed to comply with the direction and gave him the opportunity to respond. The employee responded outlining his anxiety around returning to work, that he required a quiet, non-distractive and non-stressful environment to work and that he believed he had an entitlement to work flexibly at home due to his psychological condition. The employee accused the employer of bullying and considered the direction to return to the workplace to be “ridiculous”. It wasn’t until late May 2021 that he provided a medical certificate from his doctor dated 10 February 2021 which stated the employee has a medical condition and “would benefit from working from home and may perform better when he works on his own from home”- this was the first time such a letter had been provided since the psychologist’s letter more than a year earlier.
The employee’s employment was subsequently terminated.
The Commission found that the dismissal was not harsh, unjust or unreasonable and dismissed the employee’s application on the basis that:
- the employer’s reasons for requiring the employee to return to the office were reasonable;
- the employee did not comply with directions to return to the office; and
- he did not dispute that he failed to comply with those directions.
The Commission also found that the directions given to the employee were lawful and reasonable as the employer sought to discuss what reasonable adjustments could be made for the employee to safely return to the office, attempted to organise a suitable support for the employee’s return to the workplace and had requested up to date medical evidence from the employee to assess appropriate accommodations for his return to work. The employee’s refusal to communicate with the employer or provide up to date medical evidence was considered unreasonable by the Commission.
Lessons for Employers
While some employees will have legitimate and well documented reasons for working exclusively from home and employers must consider reasonable adjustments where the medical evidence recommends a different way of working, employers can require employees to return to the office in circumstances where the employer has legitimate reasons for requiring in person attendance.
You can read this case here.
Should you have any questions about returning your employees to the workplace, please contact Nancy Abdalla, or another member of our team.