Can an employee insist on a 'lockdown working arrangement'?

FWC sheds light on how HR should proceed when an employee refuses to return to the office

Can an employee insist on a 'lockdown working arrangement'?

The Fair Work Commission (FWC) recently ruled over an unfair dismissal claim of a worker who argued that she could perform her work at home.

The employer said that the COVID-19 lockdown was already lifted, and fellow workers were also returning to the workplace. Find out how HR can learn from a situation where the worker insists on fulfilling her duties away from the office.

The worker was a sales consultant for a real estate agency. Her role required, among other things, to conduct property inspections, be familiar with all properties listed for sale, distribute promotional and follow-up material both by mail and leaflet drop, door-knock at relevant properties, and greet visitors to the office at reception. All of her duties were listed in the employment contract.

Last year, the Victorian government issued a public health direction that required employers to collect vaccination information about any worker “who was or may work outside their homes.” The state also prohibited workers from attending the workplace unless they provided evidence of vaccination or were exempt because they had a certificate showing medical contraindication. The worker did not have an exemption.

In October 2021, the employer asked its employees to provide evidence of vaccination status by a certain date. Later, the worker told the managing director that she would not provide her vaccination information.

Due to her non-compliance, the employer scheduled an online meeting where the parties agreed that the worker would take leave without pay. Afterward, the employer sent the worker a letter that required all employees to comply with the public health direction, saying it was a lawful and reasonable direction. It also said that compliance was an inherent requirement of her role, and failure to comply would result in termination of her employment.

The parties then attended another online meeting, where the employer asked the worker “how all her duties could be done from home.” The worker said that there would need to be an interim period with a “different working situation” and asked if there were other options aside from termination. The employer then said it would seek advice, but after a while, it sent a letter advising the worker that her employment was terminated.

What if a worker argues that “work from home” was allowed during the COVID-19 lockdown?

The worker argued that “because she had worked from home during lockdown and performed sales work including appraisals at this time, [then] she should have been allowed to work from home again.” The FWC rejected the worker’s submission and found the “lockdown [as] an exceptional situation that has now been lifted.” The FWC explained that the employer’s offices were open, “as were the offices of [its] competitors.”

HR should consider the nature of a worker’s role

The FWC accepted the employer’s evidence that “the core elements of the [worker’s] role required her to attend the workplace,” ruling that it was “reasonable for the [employer] to expect [the worker] to do her job properly, especially her core duties after the lockdown was lifted.”

But the worker argued that she was “treated differently from another employee who was unvaccinated but was not dismissed and was allowed to work from home.” Upon examining the evidence, the FWC found that the other worker’s role was to assist the managing director in administering day-to-day affairs; and the said employee could perform her duties from home, unlike the worker who filed the case. It also found that the other employee was undertaking a traineeship. Thus, they do not have the same duties.

Should HR provide alternatives before dismissal?

Yes, HR should provide alternative arrangements before deciding to terminate employment. HR should also consider the circumstances and role of every worker and the needs of the company or business.

In this case, the worker claimed that her dismissal was unfair because the employer did not provide any alternative, such as working reduced hours. The FWC noted that the worker was “employed to work full-time” as a sales consultant. The employer also needed its senior salesperson “at work and in the field, not at home on restricted duties.”

Was the dismissal unfair?

The FWC found the worker was given a valid reason and was warned on several occasions that she was at risk of being dismissed. It said the employer had a valid reason for dismissing the worker related to her capacity.

“The [worker] was given ample time to respond to the warnings and rectify the issue by providing proof of vaccination but chose not to,” the FWC said. Thus, it ruled that there was no unfair dismissal.


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