Can you terminate an employee for refusing to return to the office?

As a new wave of COVID is predicted in NSW, can people who refuse to return to a company's workspace be fired?

Can you terminate an employee for refusing to return to the office?

A return to pre-pandemic ways of working is unthinkable for a majority of white-collar employees. An improved work-life balance, fewer distractions and fewer hours spent commuting reduced stress. Hybrid and remote working is definitely here to stay. Harvard Business Review suggests there’s widespread resistance to returning to the office, with as many as 65% of employees preferring to remain fully remote. In Australia, surveys reveal a big gap between employees who would prefer to work from home compared to senior executives who are happier to be in the office.

As reports circulate this week of a new wave of COVID about to hit NSW, what happens if an employee refuses to return to the physical workspace? Can an employer legally fire them for digging their heels in?

The answer is most definitely “yes”, says Aaron Goonrey, partner at Lander and Rogers.

The first issue at stake is whether the employment contract has an agreement that an employee’s place of work is the traditional workplace. If so, there is already a legal obligation for them to attend that traditional workplace, Goonrey says.

The second challenge for employees is explaining why the worker is required to return to the office. In a recent unfair dismissal case, the Fair Work Commission ruled in favour of an employer who fired an employee for refusing to come back into the office. The applicant filed an unfair dismissal claim against his employer, the Australian Federal Police (AFP), claiming that the AFP had failed to respond to his request for flexible work and in particular his need to work from home due to his autism spectrum disorder and depression.

The employee requested to work full-time from home due to his disability. The AFP argued that it had offered appropriate adjustments to accommodate the employee’s physical return to work but he had refused to comply. They requested current medical evidence from his doctors, which he failed to provide. The AFP also offered reasons why he was physically required in the office.

The FWC agreed that the AFP had presented reasonable grounds for dismissal. While you can’t force a person to do something that is unsafe, if they can perform duties safely, then a business can compel a return to the office. Goonrey makes the point, however, that as the federal government is planning on expanding flexible work rights, the ruling on this case may not be indicative of future outcomes in unfair dismissal cases.

“As a general rule of thumb, if an employee continually refuses to attend the workplace, and the employer has provided reasonable grounds as to why they should, they can exercise their right to terminate. But this has to balance with the reasons why the employee is refusing,” he says.

These reasons may not be external factors, such as suddenly having to care for ageing parents; they could be psycho-sociological factors, and outcomes would be subject to what an employee could put forward to support their case. Fear of contracting COVID is unlikely to hold sway with no public health orders in place. Two-thirds of Australians have contracted COVID, and Goonrey says in the event of another pandemic wave, he can see employers relying on that data – and the fact that vaccination rates are relatively high in Australia – to counter employee intransigence.

“Employers could legitimately say ‘We know there is a risk, but you need to take measures to protect yourself getting to and from the traditional workplace,’” he says.

If a business is facing blank refusal after clear and reasonable direction to return to the office, then it is to be expected that they will consult with their employee pursuant with their obligations under the WHS act. 

So long as the employer assesses those cases, consults with the employee, and weighs up the individual’s needs against the needs of the business, as well as providing sound business reasons for the individual returning to the physical workplace, they will be in a solid position from a legal standpoint, Goonrey says.

However, going down the disciplinary path with someone first is always the preferred approach rather than simply terminating them for failing to follow reasonable and lawful requests, he says.

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