As the world gradually emerges from the COVID-19 pandemic and transitions back to pre-pandemic norms, the question of getting employees back to the office has become a hot topic for many employers and employees alike. Recently, two major Australian employers, NAB and CBA, have issued a direction that staff return to working from the office, citing increased efficiency and productivity as the drivers behind the direction. These directions have largely been met with strong opposition from many of the organisations’ employees, with many favouring the flexibility offered by remote working arrangements.
This article outlines the key considerations employers should be aware of to ensure compliance with the law when requesting staff to return to the office.
The employment contract
Any direction issued to employees to return to working in the office must be lawful and reasonable. At first instance, this will require compliance with the terms of each employee’s contract of employment.
Most employment contracts will nominate a location of work. In circumstances where this work location is consistent with the office address, the employer can likely refer to the employment contract in directing an employee to return to working at the contracted work location.
Where the employment contract specifies multiple locations of work including the residential address, or accommodates flexibility, or where it is silent as to the place of work, the direction to work from the office will need to be lawful and reasonable as discussed below.
Requirements under Modern Awards and enterprise agreements
Employers should also be aware of the consultation obligations imposed by many modern awards or enterprise agreements. Many awards require that employers consult employees with respect to “major workplace changes” prior to effecting the change. This requirement extends to changes that are likely to have a “significant effect” on employees. “Significant effects” is defined to include circumstances in which an employee is transferred to another work location.
Conversely, the consultation obligation extends only to decisions making major changes to the production, program, organisation, structure, or technology of the employer’s business. Some employers might therefore argue that a direction to employees to return to the office or shared workplace does not qualify as a workplace change because it does not involve a significant change in the above-mentioned areas.
This issue does not appear to have been tested before the FWC or FCA. Nevertheless, prudent employers might wish to take note of the various consultation obligations within the modern awards and enterprise agreements relevant to their employees and take steps to fulfil these obligations during the process of directing employees to return to the workplace.
Work Health and Safety obligations
Employers must also consider their obligations under the relevant Work Health and Safety (WHS) legislation and regulations. Employers continue to have an obligation to provide a safe working environment and minimise risks to the health and safety of employees. This duty will necessarily include measures to minimise the risk of exposure to COVID-19 in the workplace. Prior to directing employees to return to the office, employers should implement measures to prevent the spread of COVID-19 within their workplace, for example, by cleaning the workplace regularly and thoroughly, ensuring employees have access to adequate hygiene facilities and implementing workplace policies requiring employees to stay home when experiencing symptoms consistent with COVID-19 or a similar illness.
Ensure the direction is “reasonable”
Issuing a “lawful” direction is only part of the task in getting employees back to the office. The direction must also be “reasonable” having regard to factors like workplace policies and each employee’s individual circumstances.
Recent decisions of the Fair Work Commission illustrate the need for employers to consider each employee’s circumstances when issuing a direction to return to work, to ensure that the direction is “reasonable.”
For example, in the decision of Ruth Cully v Commonwealth of Australia [2022] FWC 495, the Fair Work Commission found that Ms Cully, an experienced Auditor with the Australian National Audit Office (ANAO) was unfairly dismissed after she failed to comply with a direction issued by her employer to return to working in the office. Ms Cully refused to comply with the direction due to her various health issues that placed her at an increased risk of severe COVID-19-related illness, as well as her full-time caring responsibilities for her terminally ill uncle.
The Fair Work Commission found that the employer completely disregarded Ms Cully’s personal circumstances, rendering the direction that she return to working at the office unreasonable.
Where an employer has issued a direction that is both lawful and reasonable requiring employees to return to work in the office, the recent decision of Jason Lubiejewski v Australian Federal Police [2022] FWC 15 confirms that an employee’s failure to comply with this direction will be a justifiable reason for the employee’s dismissal.
In this matter, Mr. Lubiejewski, an employee of the Australian Federal Police (AFP) was dismissed after he failed to comply with the AFP’s direction to employees to return to the office. Mr Lubiejewski filed an unfair dismissal application and claimed that the AFP’s direction to employees to return to the office was unreasonable due to his mental health issues. Despite several attempts by the AFP to discuss return-to-office arrangements and requesting updated medical evidence, Mr. Lubiejewski continued to work from home, asserting that he was exercising his legal entitlement to flexible working arrangements. As a result, his employment was terminated for failing to comply with lawful and reasonable directions. The Fair Work Commission (FWC) concluded that the AFP’s directions were reasonable and dismissed Mr. Lubiejewski’s unfair dismissal application.
This matter also emphasises the importance of assessing employee requests for flexible working arrangements, including working from home arrangements, on a case-by-case basis. In doing so, employers should have regard to their employees’ individual circumstances, medical evidence and any reasonable adjustments that may be implemented to facilitate the employee’s ability to work from the office. Failure to do so may render the direction “unreasonable”.
Navigating the process of bringing employees back to the office can be challenging. Where issues arise, it is important to seek tailored guidance. Hunt & Hunt can assist your organisation to effectively manage the transition back to an in-person working environment.
