FWC backs dismissal for unauthorised working from home

In a recent decision, the Fair Work Commission ruled that an employee working from home without their manager’s permission constituted a valid reason for dismissal. Here’s what HR can learn from this case.

An employee who was sacked for working from home without an approved flexible working arrangement has failed to convince the Fair Work Commission that she was unfairly dismissed. 

The employee, a business development associate at a strata management company, was dismissed in March this year after her employer discovered she had not attended her office for almost three weeks despite being required to work on-site five days per week.

In its decision, the Commission found that the employer had issued “lawful and reasonable” directions to work on-site, with employees given the option to submit a request for flexible working arrangements for consideration by the HR team. 

The employer successfully demonstrated that she had not only failed to adhere to this protocol, but also engaged in dishonest conduct in an attempt to conceal her unauthorised remote work.

According to Will Snow, Director at Snow Legal, this decision is illustrative of the value of unambiguous policies and procedural fairness when it comes to handling flexible work.

“This is a great case, because often you don’t get to see how an employer frames a concern or allegation that [someone has] been working flexibly but without their agreement or knowledge,” he says.

“It’s a really great example of a contemporary workplace investigation done in accordance with good practice.”

Flexible work policy was “lawful and reasonable”

Prior to her dismissal, the employee in question had recently transitioned from another role as a strata manager, a move which involved relocating to the Sunshine Coast. 

While she’d had access to flexible working arrangements in her previous role, her new role required her to work in the Brisbane office one day a week and in the Sunshine Coast office four days a week. 

During her training period, which spanned 12 to 18 months, she was obligated to submit a request for approval from the company’s HR department for any flexible work arrangements. No such request was submitted.

However, in March 2023, her employer became aware that the Sunshine Coast office had not been used for some time, after the manager of the rented office space contacted them to ask if they still needed to use it.

The company’s managing director attended the office to investigate and found an empty desk with a to-do list dated three weeks prior. The building manager confirmed that the employee had not used her electronic key to access the office, and subsequent inspections of her phone records showed she had been working from home during this three-week period. 

This evidence, along with the additional discovery that the employee had sent work emails containing confidential information to her personal email address while working from home, formed the grounds for her dismissal.

“It’s a really great example of a contemporary workplace investigation done in accordance with good practice.” – Will Snow, Director at Snow Legal

Crucially, she was provided with a fair opportunity to respond to the allegations through a show cause procedure. The FWC emphasised this in its decision, noting that the employer had adhered to principles of procedural fairness in handling the misconduct and issued lawful and reasonable instructions to the employee.

What’s considered “lawful and reasonable” by the court is subject to the specific circumstances of both the employee and the business, says Snow.

“For example, throughout the pandemic, it may have been neither a lawful nor reasonable direction to say, ‘You must come into the office five days a week.’ That could have contravened a particular health order or a particular government requirement.”

Now that lockdown periods have passed, requests to return to work are always lawful, he explains, but employers should also take steps to demonstrate that they are reasonable.

“Usually, that gets done by saying, ‘We have a preference for people being in the same space on certain days of the week,’ or, ‘We need to be able to mentor and manage teams. We need to be able to catch up face-to-face on issues. We need to meet with customers face-to-face.’”

Ensuring the reasoning behind your remote work policy is clearly communicated to staff can help mitigate the risk of claims of unfair dismissal being upheld by the FWC. 

Lessons on flexible work requests

The timing of this case is noteworthy, given that it has been less than four months since the first tranche of changes from the Secure Jobs, Better Pay Bill took effect, which included the introduction of increased rights for workers to request flexible working arrangements.

Read HRM’s article on how the Secure Jobs, Better Pay Bill has impacted flexible work.

However, although the new regulations offer certain employees more avenues to fight back against employers who deny flexible work requests, this does not negate the need for appropriate procedure, says Snow. What’s more, the employee did not fall under any of the protected attributes specified in the Bill, which include employees who are: 

• Over 55
• Living with a disability
• Pregnant
• Caring for infants or school-aged children
• Carers (within the meaning of the Carer Recognition Act 2010 (Ch)), or
• Experiencing family and domestic violence, or caring for someone who is.

“It would have been a more complicated situation if [the employee] had said, ‘I have particular caring arrangements that mean that I have to work from home on particular days,’ for example,” he says. “[In that case], it might be quite hard to establish that was a reasonable direction that somebody didn’t comply with.

“But, across all those requests under new or amended laws, you can still have a good reason to say ‘no’. You just need to be able to articulate it in a way that will make sense to the person hearing it. And this is why assumptions about the way in which work has to be done need to be reviewed.”

If you suspect an employee has engaged in misconduct, what should you do next? AHRI’s short course, Investigating Workplace Misconduct, can provide some answers.

The post FWC backs dismissal for unauthorised working from home appeared first on HRM online.