Working remotely is a hot issue with some employers wanting staff to return to the office.
These three key cases provide insight about what employers need to consider before making the call:
- Right to work from home: In Homes v Australian Carers, the Federal Court ruled that employees don’t have a right to work from home, unless such a provision is in their contract or any relevant industrial instrument. Further, the Court held that employers have the discretion to differentiate among employees asking to WFH. Factors including role, experience, and responsibilities are relevant.
- Operational needs: In Hair v State of Queensland, an employer denied an employee’s request to work remotely from interstate. The Qld Industrial Relations Commission said that an employee may have a preference for a specific work arrangement, but it must be weighed against the employer’s operational needs. The decision to reject the flexible work request was fair and reasonable. The Commission based its analysis on the employer’s policy guidelines, the role’s responsibilities, and the challenges in attending meetings on short notice.
- Monitoring employee performance: In Suzie Cheikho v Insurance Australia Group Services Limited, an employee who WFH was sacked due to misconduct (failure to meet work requirements). To demonstrate a valid reason for the dismissal, the employer submitted a report detailing the employee’s cyber activity, including daily and hourly statistics, VPN usage, and average keystrokes per hour. After reviewing this evidence, the FWC found that the employee was not unfairly dismissed.
- Organisations should have clear policies and procedures about how employees may make WFH requests.
- Organisations should review remote work policies and arrangements regularly, particularly if circumstances change. Changes may include technological advancements, shifts in business needs, or changes in employee preferences.
- Employers may be able to implement monitoring systems to ensure remote working employees satisfy work requirements, provided they comply with privacy and any other relevant laws.
- Employers must consider individual employee needs and special features (eg family responsibilities, disability) when evaluating remote work requests. No one size fits all. For further information about new rights around flexibility under the Fair Act 2009 see our recent blog.
If you need advice about whether your decisions are defensible or policies are fit for purpose, please contact email@example.com for further information.