Fair Work Commission confirms desk not required to be provided to employee working from home
It has been a turbulent year for most workplaces, including managing the sudden shift to working from home arrangements. Against this backdrop, the Fair Work Commission has provided interesting commentary in the recent unfair dismissal case of Jayson McKean v Red Energy Pty Ltd  FWC 5688, which involved a dispute about whether the employer was required to supply a desk for an employee working from home.
Jayson McKean (‘McKean’) was employed at Red Energy Pty Ltd (‘Red Energy’) as a Customer Assist Specialist. At the beginning of the COVID-19 pandemic, Red Energy, like many employers, encouraged employees to work from home. McKean resisted the shift to working from home, for reasons said to relate to financial stress and a recent move of house, unless Red Energy provided him with a desk or reimbursed the cost of purchasing one.
Although Red Energy provided a laptop, headset, adjustable chair, ergonomic assessments, access to an occupational therapist and online resources to its staff, it would not agree to provide a desk.
Initially, McKean continued to work from the office, but following the reintroduction of Stage 3 restrictions in July, Red Energy informed McKean that he would need to arrange to work from home. McKean’s union engaged in unsuccessful discussions with Red Energy to find a solution, but when these failed, McKean requested 6 weeks leave. After his request for leave was rejected, McKean felt that he had no choice but to resign.
McKean brought an unfair dismissal case to Fair Work Commission, seeking reinstatement and payment of lost wages. He argued that Red Energy’s conduct, in refusing to buy him a desk, grant the application for leave, or allow him to continue working from the office, amounted to constructive dismissal because it left him with no reasonable choice but to resign his employment.
McKean further argued that Red Energy had breached the Occupational Health and Safety Act 2004 (Vic) by failing to take reasonably practicable measures to maintain a safe working environment for its employees.
For an unfair dismissal claim to be heard by the Fair Work Commission, the employment must have been terminated “on the employer’s initiative”. Red Energy argued that it had not and lodged a jurisdictional objection to McKean’s unfair dismissal claim, arguing that McKean had not been forced to resign and therefore that he had no standing to make a claim.
The Commission rejected McKean’s arguments as being “entirely without merit”. The Commission found that McKean could have reasonably bought a desk, noting that McKean himself had acknowledged that he had the means to do so, and it was only on principle that he refused. The Commission found that “on any reasonable view, the prospect of having to pay a small sum to buy a desk was not a matter that forced McKean to resign”. This finding alone was enough to dismiss the case.
The decision of the employer to refuse leave was also found to be reasonable, given it was a request for an extensive period with very short notice. McKean’s decision to resign was therefore one that was made freely by him and not because he was left with no other alternative.
Deputy President Colman also found that the facts did not establish that there was an OHS risk, let alone a contravention of the OHS Act. The resources provided by Red Energy were found to be adequate, having regard to the nature of McKean’s work. There was no basis to argue that it was not reasonably practicable for McKean to work from home.
Deputy President Colman made additional commentary on the repeated refusal by McKean to work from home, stating that the direction to work from home was plainly lawful and reasonable in the circumstances, and Red Energy would have been entitled to dismiss McKean for his failure to follow a lawful and reasonable direction. Although in this case Red Energy had not dismissed the applicant, DP Colman stated that he would not have considered the dismissal harsh, unjust or unreasonable if it had.
Lessons to employers
This case is useful to employers in understanding what would be required to establish a constructive dismissal. The employer’s conduct in this matter had in no way forced a resignation, and the unfair dismissal claim therefore failed on jurisdictional grounds.
This decision also provides valuable insight into what equipment might need to be provided by an employer to provide “adequate resources” to meet OHS obligations. Whilst in this case, a desk was not required for the employee’s particular role, an employer should consider the particular requirements of an employee’s role when deciding what is necessary to enable working from home.
Please contact our Employment Team if you would like to discuss your particular workplaces circumstances and what adequate resources might be required to accommodate working from home arrangements.
with Emily Clapp, Graduate at Law