In a recent case, an employee filed an unfair dismissal claim when his employment was terminated because he had been secretly working overseas and this behaviour breached his Working From Home (“WFH”) conditions.  

Background 

A scientist at the Bureau of Meteorology (the “BoM”) commenced a period of recreational leave to the United States on 23 August 2022 to 16 September 2022. After this date, the employee had informed his manager that he was working in Australia, but his manager observed that he was unresponsive during work hours. On 28 September 2022, the employee’s supervisor notified the BoM that he had not returned to work onsite at the office and that he was “still overseas but representing himself to be working in Australia”. 

The employee failed to provide evidence to prove his whereabouts when asked by the BoM of his travel records.  Consequently, the BoM commenced a workplace investigation alleging that the employee had breached the Australian Public Service (the “APS”) Code of Conduct. The employee was invited to respond to the allegations before the BoM concluded their investigation and he noted that he “truly did not recall” his travel details. The allegations are summarised as follows: 

• using a personal device on Bureau networks without first obtaining permission; 
• failing to comply with the conditions of his WFH arrangements by choosing to work overseas; 
• making a false statement to a manager regarding his whereabouts; and 
• failing to comply with a lawful and reasonable direction when the BoM asked the employee to provide evidence of his whereabouts. 

The BoM formed the view the employee had breached the APS Code of Conduct and advised the employee that the appropriate course of action was to terminate his employment. The employee, with the assistance and advice of his union, appealed this decision on 24 May 2023 where he acknowledged the “serious risks associated with accessing work systems through a personal device without adequate clearance” but maintained he did it for genuine work-related purposes. His employment was terminated on 22 June 2023 and subsequently filed an unfair dismissal claim. 

Was the employee unfairly dismissed? 

The Fair Work Commission (the “FWC”) was satisfied that the allegations provided by the BoM were, on the balance of probabilities, “sound, defensible, or well founded” grounds for dismissal. The FWC noted that “While [the employee]’s intentions may have been honourable in these circumstances, it is not for him to decide when and from where he can access the employer’s IT networks, without prior approval”, and that dismissal was somewhat uniquely justified as the “serious potential breaches to Commonwealth IT networks and systems” were alone enough for the BoM to “take decisive action.”  The employee’s claim was dismissed. 

What can employers learn from this case? 

• The BoM had a unique WFH arrangement, so the specificities of this case are not universal for all WFH misconduct of this nature. While employers may have the discretion to determine WFH conditions in their respective workplaces, it is important that the parameters of such WFH arrangements and the consequences of breaching WFH arrangements are clearly communicated to all employees. In this case, the employer’s Code of Conduct also proved useful in setting a standard expectation for the employee’s behaviour and formed part of the basis for dismissal. 
• Employers should also keep in mind that the usual workplace obligations still extend to remote workers located overseas. In particular, careful consideration should be given to matters such as performance management, work health and safety, and payroll and tax obligations.

Vanessa Yol, Associate and Daniel Prodigalidad, Paralegal