Employment disputes involving remote working on the rise

FWC upheld the dismissal of an Australian Federal Police (AFP) employee who refused to return from remote work. In March 2020, the employee, who worked in the news and online services team and had autism spectrum disorder, anxiety and depression, gave the AFP a letter from his psychologist that detailed an ideal workstation set-up for the employee’s needs, the letter included a comment the AFP may consider flexible working options if the seating arrangement wasn’t available. Shortly after this, the employee started working from home because of Covid-19 lockdowns. Once the lockdown lifted the employee took personal leave and returned to work in January 2021. He continued to work from home without making a flexible work arrangement with the AFP. Several attempts to contact the employee were refused and he relied on the letter he’d received in March 2020 as support for his continued remote working. After many attempts to facilitate his gradual return to work were ignored the AFP formally directed him to return, the employee didn’t and was terminated. He made an unfair dismissal claim, the FWC ruled the dismissal was not unfair and the application was dismissed.

A decision in March from the Queensland Industrial Relations Commission (QIRC) demonstrates that employers may decline requests for remote working arrangements where there are practical and operational reasons that make them unviable.

The case of the employee who wanted to move states.

An HR advisor at West Moreton Hinterland Hospital and Health Service, requested to work remotely from New South Wales where she wanted to permanently relocate. The request came after performance review that found the employee was meeting or exceeding all leadership standards while working from home during lockdown. The employee was willing to work one week a month in Brisbane and cover the travel costs herself. The request was refused because the hospital felt that some responsibilities did require in-person attendance and the arrangement would prevent the employee from responding to in-person requests in a timely way, the travel time would reduce her productivity and ultimately her team would be disadvantaged because the arrangement would distribute duties unfairly between the team.  The QIRC commissioner supported the hospital’s ability to determine operational requirements of the HR Advisor role and concluded that it was fair and reasonable for the hospital to decide that in-person attendance at the hospital will be required in the near future.

As Australia emerges from the restrictions of the pandemic and company executives urge people to return to work, business and HR leaders will have to quickly define what ‘return to work’ means as many people that have been working remotely for the last two years, have expressed they would rather quit than lost the ability to do their jobs while folding the laundry or popping out to run errands. One thing is for sure. We are in a remote revolution and this is just the start of it.