Slowly but surely, most employers are requiring employees to return to the office for at least a portion of their working week. Some employers continue to struggle with employees who are resistant to returning to the office or those who have an expectation that they can continue to work from home whenever it suits them. Anecdotally, we are seeing that it is fairly common for employers to have a handful of employees who continue to work from home without any authority or consent from their employers.
Two recent decisions of the Fair Work Commission (FWC) are instructive on this point as both cases involved employees dismissed for failing to work in the office but had different outcomes.
Chantelle Major v Strata Management Group Pty Ltd[2023] FWC 2276
In the first case, the employee, Ms Major, commenced employment on 22 March 2022 as a Senior Strata Manager. During her employment, Ms Major's role changed from Senior Strata Manager to a Trainee Business Development Associate.
Ms Major's prior role allowed for flexible work arrangements but the new business development role required her attendance in the office, especially given she was a trainee.
On 21 March 2023, Strata Management Group (SMG) sent a detailed show cause letter requesting Ms Major's response to the following allegations:
- failing to attend the office to work between 24 February and 13 March 2023 and without authority;
- leaving the office after lunch to resume work from home. On two occasions, the employee left the office after lunch to work the remainder of the day at home despite not seeking approval first or notifying anyone of her whereabouts; and,
- forwarding SMG emails to her personal email address.
SMG considered the employee's response and found each allegation was substantiated. On 27 March 2023 SMG terminated the employment with notice. Ms Major lodged an unfair dismissal claim.
The Commission found that there was a valid reason for the dismissal in that the employee had:
- breached her employment contract by forwarding private emails to her personal address; and,
- failed to comply with a lawful and reasonable direction to work in the Sunshine Coast office.
The dismissal was procedurally fair in that the employee was provided with the opportunity to respond to the allegations against her. Accordingly, the dismissal was not harsh, unjust, or unreasonable.
Thomaso Edwards Moro v Insider Au Pty Ltd [2023] FWC 3148
Mr Moro was employed as a digital growth associate for just over a year before his dismissal on 1 September 2023. During his employment he had a stellar performance record and received performance awards. He had never received any warning related to his performance but had received some informal criticism for working from home on mandatory office days. On 30 August 2023, Mr Moro worked from home as he had a tradesperson attending his home to repair his dishwasher. That particular day was a mandatory office day. The usual procedure for alternative working arrangements was to first seek approval via WhatsApp and then update the work calendar to let everyone know.
On 31 August 2023 Mr Moro's manager advised him over the phone that it was 'best to part ways'. Mr Moro's IT access was removed the following day. Mr Moro's contractual notice period was eight weeks however, the employer only paid him two weeks – the minimum notice period given his length of service.
Commissioner McKenna heard the claim and held that the dismissal was harsh and unjust. Failing to attend work on the mandatory office day wasn't a valid reason for dismissal, even though Mr Moro had been criticised for doing the same thing a few months earlier.
Further, the Commission pointed to the lack of procedural fairness in the dismissal. Mr Moro was not adequately notified of the reason for his dismissal or provided the opportunity to respond to that reason. The Manager's comment that it was 'best to part ways' indicated the decision to terminate employment was predetermined before that call was made.
Commissioner McKenna also made note of the fact that the employer was part of a group of companies with over 1,000 employees, including in-house legal counsel so the lack of procedural fairness was surprising given employer's specialised resources. In those circumstances, the unfair dismissal claim was successful and Mr Moro was awarded compensation equivalent to 12 weeks' pay.
Why were the cases decided differently?
In Mr Moro's case, there was no valid reason for dismissal – working from home that day without seeking approval before updating the calendar was an example of fairly low level non-compliance which did not justify dismissal. The lack of procedural fairness in the process also exposed the employer to a high risk of a successful claim.
In contrast, the fact that the Ms Major worked from home without approval was one of three reasons she was dismissed; the breach of privacy provisions in her employment contract was a significant reason for the dismissal. Crucially in Ms Major's case, the employer gave the employee extensively explained reasons and an opportunity to show cause and explain.
Practical takeaways
- Consider whether you have a valid reason for dismissal – one occasion of working from home without authority or failing to follow the process for seeking permission is highly unlikely to justify dismissal. Consider whether you have clearly directed your employee to work in the office and whether they understand your expectations. If you have explicitly pulled them up on each occasion they have flouted the policy, you are on much stronger ground.
- Assuming there are several instances, set out the instances of non-compliance in clear detail (preferably in writing) and ensure your employee understands what is alleged and how it breaches your policy or directions to them.
- Always ensure that you give the employee an opportunity to respond to the allegations against them. They can respond either in a meeting or in writing if they prefer.
- Consider other less serious ways to deal with the conduct. Perhaps, for example, a warning is a more appropriate disciplinary outcome or the employee requires further training on your working from home policy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
