Case sheds light on employee who was stood down after 'work from home' request
The Fair Work Commission (FWC) has recently dealt with the case of an employee who challenged a stand-down notice due to her failure to comply with her employer’s mandatory COVID-19 vaccination.
The employee is a full-time lecturer at a university. In March 2020, a state of emergency was declared in the Northern Territory. In the following year, around October, the Chief Health Officer (CHO) issued a direction mandating COVID-19 vaccination for workers to attend work in certain circumstances.
The employee did not comply with the direction and was stood down. She questioned the notice and said the employer had no power to issue it because her enterprise agreement does not allow for the stand-down of “full-time employees.” She also said the FW Act only provides a limited scope for an employer to issue a stand-down notice.
One of the main arguments of the employee was that she “could have performed her role from home” since there were “no lectures planned or given during the period 13 November 2021 to 1 March 2022.”
The employer said that it “had no choice” but to place the employee on leave without pay because the “university is bound by the [CHO’s direction] and the employee had not received her first vaccination” on the required date.
Does the FWC have the power to direct an employer to offer a ‘work from home’ option?
No. The FWC said it “does not have the capacity to direct any employer to offer a ‘work from home’ option to any employee, no matter what circumstance or logic may be present.”
It also said it did not have the jurisdiction to “compel the employer to either abide by or ignore the CHO’s direction,” saying it was “a matter for the court.”
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The FWC noted the employer decided that it must comply with the direction and made it “mandatory for the employee to be vaccinated according to the CHO, for her to resume her duties.”
Procedural issues
The FWC said it did not have jurisdiction to determine whether the employer had complied with the CHO’s direction. It also said the employee’s application was “premature” because she had “not complied with the mandatory steps” as stated in the dispute resolution procedure of her enterprise agreement with the university.
Thus, the FWC dismissed her application. The decision was handed down on 7 March.