Employee working from home fails to comply with a workplace direction to return to work

Will an employer have a ‘valid reason’ for dismissing an employee if they refuse to return to work after being issued a workplace direction to do so? In a recent decision, the Fair Work Commission (FWC) has decided that employers will have valid reason in such circumstances, provided that the direction to return to work is both lawful and reasonable.

An employee (the Employee) was employed for more than a decade with the Australian Federal Police (AFP) in its News & Online Services team. With the onset of COVID-19 lockdowns however, the Employee unilaterally decided to work remotely, without authorisation from management. After 3 months of working from home, the Employee was given a workplace direction by the AFP to return to work and perform his duties onsite at least three days per week.

Cognisant of the Employee’s Autism Spectrum Disorder and other mental health issues, various accommodations were proposed by the AFP including implementing appropriate seating arrangements near windows with “limited foot traffic” for the Employee. The AFP attempted to implement reasonable adjustments to ensure that the interests of the Employee were met, namely his concerns surrounding COVID-19 transmission.

The Employee, however, did not comply with the direction and failed to respond to numerous requests made by the AFP to comply with the direction, or comment on the return to work plan the AFP had prepared for him. Instead, when advised that Organisational Health, the relevant department accountable for monitoring work, health, and safety practices for the AFP, would be in contact with him regarding the matter, the Employee failed to cooperate by refusing to discuss any return-to-work arrangement due to his fears over COVID-19 and his mental condition.

Before the FWC, the AFP argued that the Employee had “wilfully and continually” refused to comply with the many workplace directions given to him to return to work and did not provide updated medical evidence supporting his mental condition as the reason for his refusal. Although the AFP issued the directives with full knowledge that the Employee would not comply, as was demonstrated repeatedly, Deputy President Lyndal Dean found that the AFP’s workplace directions were in themselves both lawful and reasonable.

DP Dean held that the AFP had taken several reasonable measures to ensure a safe return to work plan for the Employer. Firstly, the AFP sought to discuss with the Employee reasonable adjustments for the Employee to work safely while onsite. Secondly, the AFP requested relevant and up-to-date medical evidence from the Employee to support his mental condition preventing him from attending the workplace. Thirdly, the AFP proposed that the Employee may work remotely partially and would provide suitable seating arrangements for whenever the Employee was to work onsite.

The Employee’s refusal to consider these measures despite them being clearly communicated to him, and his non-compliance with the lawful and reasonable directions to return to work, were held by DP Dean to be unreasonable. Upon weighing up the reasonableness of the directives against the unreasonable response of the Employee, the FWC ultimately held that the AFP had a valid reason to dismiss the Employee in the circumstances.

If you require advice on the issuance of “Return-to-Work” workplace directions to employees of your business, please do not hesitate to contact  Nick Stevens, Luke Maroney, Daphne Klianis or Josh Hoggett.

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