A decision of the Fair Work Commission (the “FWC”) has provided guidance as to the ability of employers to take disciplinary action against employees who refuse to return to work after a period of working from home.

Facts

The employee commenced employment with the Australian Federal Police (“AFP”) in or around 2010 in the News & Online Services Team. In 2017 the employee, who had autism spectrum disorder, anxiety and depression, moved workstations pursuant to the medical advice of his treating doctor.

In March 2020 the employee provided the AFP with a letter from his psychologist which set out an ideal workstation set-up (including being away from people, near a window and where a minimum number of people would need to walk past). The letter went on to comment that if such a seating arrangement was not available the AFP may consider offering the employee the opportunity to work flexibly from home.

Shortly after March 2020 the employee started working from home due to the COVID-19 lockdowns. The employee did not return to work once the lockdown lifted and took a period of personal leave. The employee recommenced work in January 2021 and continued to work from home without an authorised flexible work arrangement.

The AFP attempted to contact the employee on multiple occasions to discuss his return to work, reasonable adjustments and work arrangement. However, the employee refused to meet with the AFP and relied on the medical letter from March 2020 to support his continued working from home. Between January 2021 and March 2021 the AFP made eight attempts to facilitate the employee’s return to work. This included offering the employee a graduated return, contacting the employee to discuss reasonable adjustments and requesting up to date medical advice.

The AFP then formally directed the employee to return to work. This request was repeated on numerous occasions. The employee failed to comply with the direction and the AFP ultimately terminated the employee’s employment for failing to comply with a reasonable and lawful direction.

The employee made an unfair dismissal claim to the FWC.

Decision

The FWC held that it was both lawful and reasonable for the AFP to direct the employee to return to the office to discuss adjustments required for the employee to continue working. The employee’s claim that the direction was unlawful or unreasonable was rejected by the FWC.

The FWC also found that the employee’s refusal to provide more up to date medical evidence was unreasonable.

The FWC stated:

“I am satisfied that the directions given to him were both reasonable and lawful in the circumstances. First, 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…both a discussion with him and up to date medical evidence was necessary for the AFP to make a proper assessment as to what support or accommodation was needed to be provided to him.”

The dismissal was not unfair and the application was dismissed.

Key takeaways

• Employers can direct employees to return to work provided the direction is lawful and reasonable.
• Employers can take disciplinary action against employees who fail to comply with lawful and reasonable directions.

Kirryn West James, Director