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Tripwires of flexible working arrangements

05 March 2024

6 min read

#Workplace Relations & Safety

Published by:

James Sofianos, Alice Leighton

Tripwires of flexible working arrangements

The recent Fair Work Commission case of Diandong Ren v The Commonwealth of Australia as represented by the Bureau of Meteorology [2023] FWC 3157 (Diandong) demonstrates a number of tripwires associated with flexible working arrangements. The Fair Work Commission (FWC) upheld the dismissal of a Bureau of Meteorology (BOM) scientist who was working remotely from Austin, Texas in the United States without prior approval from his employer.

What happened in this case?

Diandong Ren (the employee) was investigated by the BOM as he was unresponsive during his agreed working hours and failed to attend meetings following a period of approved leave in the United States. The BOM traced the IP address the employee was using to access their network and discovered that he was logging in remotely from Austin, Texas.

As the employee claimed he had returned to Australia, the BOM asked him to present evidence of his travel dates, such as various travel records from the Department of Home Affairs, but he refused to do so.

On 4 November 2022, the employee was provided with a notice to show cause in relation to the following allegations:

  • using a personal device on the BOM’s networks without first obtaining permission
  • failing to comply with the conditions of working from home arrangements, by working overseas
  • making a false statement regarding his whereabouts
  • failing to comply with a lawful and reasonable direction.

The above allegations were substantiated and the employee was issued with a final sanction decision and notice of termination on 22 June 2023.

What was the FWC’s decision?

The FWC ultimately held that:

  • the dismissal was valid and fair
  • it was not for the employee to decide when and from where he could access networks without approval.

Commissioner Scott Connolly held that the employee accessed the BOM’s networks without permission, worked overseas without approval, lied about his location and failed to comply with a lawful and reasonable direction to provide evidence of his return to Australia. Further, it was conveyed that while the employee may not have had any malicious intent in logging on remotely, it was not for him to decide when and where he could access the BOM’s networks without prior approval.

Implications and takeaways for employers

Ultimately, this decision reignites the discussion surrounding flexible work arrangements, including in a public sector context. The case of Diandong demonstrates the importance of having and maintaining fortified flexible working policies and procedures, and expressly defining an employee’s working hours. This assisted the BOM in dismissing the employee in a way that was not considered ‘unjust’ or ‘unreasonable’.

While the specific facts of this case are unique, public sector employers may consider applying the framework employed by the BOM if employees do not work in accordance with an approved flexible working arrangement.

The current flexible working arrangement landscape

As we move into 2024, expectations with respect to flexible working arrangements are shifting. With the worst of the pandemic behind us, employers are starting to push back as they consider whether flexible arrangements still serve their business. While flexible working arrangements have gained more popularity recently and are considered somewhat the ‘new normal’, they remain a matter for mutual agreement between the employee and the employer.

The right to request flexible work arrangements is codified within section 27 of the Industrial Relations Act 2016 (Qld) (IR Act) and section 65 of the Fair Work Act 2009 (Cth) (FW Act). These provisions entitle employees to request changes to their working arrangements.

Recent FW Act amendments also mean that the federal legislation goes one step further to entitle employees to challenge an employer’s refusal to a work from home request in the FWC should their refusal not be based on “reasonable business grounds” or a genuine attempt to reach an alternative arrangement. These amendments were perhaps designed to give some of the power back to employees in a landscape that is drastically changing. However, recent decisions of the FWC appear to favour the employer on this matter.

Case law is still emerging in this area and we cannot be certain how the FWC will proceed in future. In part 1 and part 2 of our Secure Jobs flexible working dispute series, we considered the amendments to the FW Act and the recent decisions of the FWC related to those amendments.

Changing attitudes and legislation means we are likely to see more legal disputes in 2024 concerning working from home arrangements. For this reason, it is important to be aware of the potential tripwires which may arise.

Flexible working arrangement tripwires

Some of the key tripwires we have identified include:

  • employer expectations regarding working from home
  • the location of a working from home arrangement and when such an arrangement can take place
  • workplace health and safety.

There can be tension between an employer and employee regarding expectations around working from home. Where an employer may wish to monitor an employee at home, an employee may wish to maintain their right to privacy.

In Diandong, the employer was entitled to check the employee’s IP address to determine whether their expectations of the arrangement were being met. It is not unusual that employers might resort to monitoring cyber activity, keystrokes, website history or IP addresses to hold employees accountable and, as demonstrated in recent case law, these approaches have not been criticised. The key consideration is whether the employer’s expectations were reasonable in the circumstances, not the means they used to confirm those expectations were being met.

The case of Diandong highlights issues that can arise with flexible working arrangements, specifically where and when work can be done. There appears to be some uncertainty as to whether employees can freely choose their work location or if they are required to work from home. In this case, it was determined that the employee could not decide when and from where he could access his employer’s IT networks without prior approval. This decision is valuable for employers who wish to maintain some control over their employees’ work location and schedule. To avoid confusion, we recommend that employers establish clear boundaries with their employees on what is acceptable or unacceptable in respect to a flexible working arrangement before it commences.

Workplace health and safety obligations in respect of flexible working arrangements are another tripwire for employers as there is limited judicial guidance on the matter. One potential issue relates to whether an employer is liable for the wellbeing of people other than their employees in the working from home environment. The case of Diandong illustrates the complexity of this issue as the employer would likely struggle to assess potential hazards or psychosocial risks without knowing where the employee is truly working from or the condition of the overseas environment. In assessing a flexible working arrangement, employers should consider their ability to prevent potential risks or hazards and provide the appropriate support or guidance to employees in various settings.

If you have any questions or wish to discuss how your organisation can navigate the current flexible work arrangement landscape, please get in touch with our team below.

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.

Published by:

James Sofianos, Alice Leighton

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