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The flip side of the 'Great Resignation'

04 May 2022

6 min read

#Workplace Relations & Safety

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The flip side of the 'Great Resignation'

The so-called “Great Resignation” has recently taken up a lot of headline space, with many self-appointed experts providing plenty of fact-light assessments about the effect of the pandemic on people deciding to leave their jobs.

Much less time has been devoted to understanding those who want to stay put in their jobs, especially those employees who were forced by the pandemic to work from home and have now decided they should be allowed to keep working from home indefinitely.

For most workplaces, practical compromises about balancing working from home and working from the employer’s premises can be reached most of the time. However, the Fair Work Commission (Commission) is now at the beginning of the pipeline of termination claims arising from situations when these practical compromises may be a bridge too far.

Unfortunately, the results so far do not provide any simple or consistent guide to where the law is heading in what could be an increasingly common scenario. Three of the earliest decisions made in the last month or two illustrate the range of outcomes and the fine (and potentially inconsistent) distinctions being drawn.

Dismissed for not coming to the office – that’s fair

On one end of the spectrum, Mr Lubiejweski had applied for permission to work from home for health reasons just before the pandemic hit. He was given permission for some short-term special arrangements but very shortly afterwards he, like millions of others, was directed to work from home and he happily did so for a couple of months. After the lockdowns were over and staff in his agency began returning to the office, Mr Lubiejweski began working from home and refused multiple directions to return to the office. He also refused to attend meetings at the office to discuss his potential working arrangements.

His employer was already aware Mr Lubiejweski had some health issues and there was no dispute that his primary functions could readily be performed entirely remotely. Mr Lubiejweski also provided some (limited) medical support for a continuation of his working from home arrangements.

But the Commission determined that it was reasonable for Mr Lubiejweski’s employer to direct him to work from the office, with some adjustments designed to address his medical issues, and unreasonable of him to refuse to meet with his employer about his working arrangements. His repeated refusals provided a valid reason for termination and the Commission decided his termination was not unfair.

Dismissed for not coming to the office – that’s not fair, you’re reinstated

At the other end of the spectrum was a government employee who similarly decided to continue working from home when the shutdowns were over and employees had been directed to return to the office. Ms Cully also refused multiple specific directions to attend the office and, like Mr Lubiejweski, decided only to make herself available to work remotely even though her approval for remote working had included a specific requirement to make herself available to attend the office when directed, such as for staff meetings.

As well as having her own health issues relevant to remote working, however, her situation was further complicated because Ms Cully was the long term carer for an elderly uncle who had entered into palliative care and she needed to work remotely in order to provide care to him.

After multiple periods of refusing to attend the office, she returned to the workplace after a disciplinary process had commenced. She was back at work for about six weeks before the decision was made to dismiss her because of her previous multiple refusals to follow directions.

The Commission assessed her circumstances as unique and, after ignoring some clumsy attempts by the employer to rely on performance issues, determined that the employer had such “disregard” for Ms Cully’s personal circumstances that the direction for her to return to working at the office was unreasonable and her termination was unfair. Ms Cully was reinstated and provided with back pay and full continuity of service.

Dismissed for not coming to the office – that will be fair, but not yet

And right in the middle between those two examples was Mr Marriott who (along with all his colleagues) successfully worked from home for months in a non-customer facing role. When a Victorian health directive required his employer not to allow any person to work outside their homes unless they have been vaccinated, Mr Marriott was told he would need to provide proof of his vaccination status by some critical dates to enable him to return to the workplace. He refused and indicated he would not be getting vaccinated.

Soon after, he was terminated for failing to follow a reasonable direction and because he could not comply with what was now an inherent requirement of his role – to be fully vaccinated so that he would work at locations other than his home.

The Commission split the difference. It decided that the employer’s direction was reasonable (that he had to be vaccinated in order to perform his role) but that the decision to terminate was premature because the employer did not require any of his colleagues to attend the workplace until three months after Mr Marriott had been terminated. So it was unfair to terminate him until he needed to return to work.

Fortunately or unfortunately for Mr Marriott, he had earned more money working for another employer during those three months than he would have earned in his old job, so he got a decision from the Commission saying his termination was unfair but was awarded zero compensation because he didn’t suffer any financial loss by losing his job.

What to make of this spectrum of decisions?

All the decisions recognise that a direction to work from an employer’s normal premises is normally reasonable. That is, working from home is not an entitlement, even if a person’s job is not customer facing and does not require mixing directly with other employees. Instead, an employer can reasonably insist on employees working at the employer’s premises because it is part of building a functioning business to bring employees together to interact, to maintain a team environment and to ensure work can be properly supervised.

But an employee’s personal circumstances can still potentially trump an employer’s entitlement to direct where employees perform their work.

The problem is that there is no clarity or consistency on what might be a trump card:

  • Mr Lubiejweski had health issues and medical support and a job that could be done 100 per cent remotely, but his claim failed
  • Ms Cully had health issues and medical support and carer responsibilities and a job that potentially required some personal attendance, but her claim succeeded
  • Mr Marriott’s employer could direct him to return to the office but was expected by the Commission to continue to employ him working from home until he did refuse to come to the workplace rather than when he effectively told his employer he would not come when he was directed to in the future.

Unfortunately, the lesson to come out of these early decisions is not any clarity about the law, but instead a lesson in the value of trying to reach practical resolutions to avoid the uncertainties of litigation.

Author: David Quinn

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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