Can I fire an employee for refusing to return to the office?

A recent Fair Work Commission (FWC) decision has ruled over a case of a worker who argued against his employer’s direction to return to the office, saying that he was "legally entitled" to work from home due to his disability.

The worker said he has a "lawful right" to a flexible working arrangement due to his condition but his employer said he needs to give "up to date" medical evidence for a proper assessment. The worker failed to comply with the employer’s request.

The worker was an employee of the Australian Federal Police (AFP) and his duties involved updating the AFP’s social media content. He was diagnosed with anxiety and depression. His doctor recommended that the worker move his workstation, and the AFP complied. After some time, the worker requested another relocation due to health reasons but since the COVID-19 lockdowns, the worker began working from home.

He continued to work from home without approval. According to records, the AFP “made multiple attempts” to contact him, requesting his attendance in the office. The AFP also said he should engage the services of a workplace rehabilitation provider. The worker did not reply to the AFP’s official communications, refused to return to the office, and failed to return calls and emails. The AFP then issued a formal direction for him to attend work.

The direction cited the AFP Commissioner's Order on Professional Standards, saying “a failure to comply with the direction could result in disciplinary action, [including] termination.” Despite this, the worker did not attend and continued to work from home. The AFP noted a total of ten occasions when it repeatedly asked the worker to comply. The AFP issued a notice of termination for non-compliance. The worker argued against it, saying that he is “legally entitled” to work from home. Before the FWC, the worker said his dismissal was “unlawful and unreasonable” but the FWC upheld it.

“It is reasonable for the AFP to seek to discuss with him what reasonable adjustments may be required for him to work safely. It is also reasonable for the AFP to request that he provide relevant and up-to-date medical evidence,” the FWC decision said.

The FWC noted the AFP even “made it clear that it would facilitate a work from home [set-up] but not on a full-time basis,” but the worker still failed to comply. The FWC ruled that his refusal to attend the workplace amounted to a refusal to comply with a lawful and reasonable direction and thus, constituted a valid reason for his dismissal.

Key takeaways for HR

• Employers need to tread carefully when it comes to recalling employees to the office. Employees with legitimate accommodation requests need to be assessed on a case by case basis.
• Employees are legally bound to provide up to date medical evidence to employers when making accommodation requests.
• Failure to comply with an employer’s ‘lawful and reasonable’ direction could consititue a valid reason for dismissal