In a recent case* the Fair Work Commission determined that an employee’s unauthorised work from home, together with other grounds, was a valid reason for her dismissal.
The case highlighted the importance of the employment contract and workplace policy in assessing rights and responsibilities for where work is performed.
The Facts
The employee, Ms. Major, was initially employed with flexible work-from-home arrangements. In 2022 she transferred into another role as a business development associate and was required to work in the employer’s Brisbane office for 1 day a week and its Sunshine Coast office for 4 days a week.
She was required to formally request any flexible work arrangements through Human Resources but failed to do that.
The employer contended that it was a condition of her employment agreement that she abide by the employer policy which included provision to be at the office on-time each day, the office being open between the hours of 8:30am and 5pm.
The employer’s reasons for wanting her to work from its offices included for clients to be able to turn up unannounced to see her.
The employer became aware that the Sunshine Coast office had not been used for about 3 weeks and wrote to her with its concerns including that:
- She was forwarding emails to her personal email address and attempting to conceal that by deleting the sent emails.
- She had not been attending the Sunshine Coast office.
After considering her response the employer terminated the employment on grounds including that she had directly contravened directions to work at the Sunshine Coast office, and that her conduct had damaged the employer’s trust and confidence in her performing her duties.
The Decision
The Fair Work Commission decided that:
- Ms. Major had failed to obey the employer’s lawful and reasonable direction to work from its offices.
- She was not entitled to work from home in the relevant period.
- The allegations amounted to a valid reason for dismissal.
- She had been given a reasonable opportunity to respond to the allegations and the dismissal was otherwise fair.
Implications
Significantly, in its employment contract and workplace policies the employer had stated its expectations about working from its offices and about flexible work arrangements, that Ms. Major failed to comply with.
Some implications for employers are:
- To ensure that employment contracts and workplace policy clearly state the expectations for where work is performed.
- To have policy addressing flexible work arrangements and to educate employees in the policy.
Some implications for employees are:
- To understand the expectations stated in their employment contracts and in workplace policy.
- To communicate appropriately with their employer about work flexibility requests. and in accordance with workplace policy and the laws regulating flexible work requests.
New Laws for Flexible Work Requests
Employers and employees should also understand their rights and obligations under the laws regulating flexible work requests as recently amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).
The Fair Work Commission has recently handed down its first decision under the new laws, which we will explain in our next article.
*Ms Chantelle Major v Strata Management Group Pty Ltd – [2023] FWC 2276 (7 September 2023)
Some more information is available here or you can book online for an initial no-obligation chat about reviewing an employment contract or contractor agreement.