Navigating Remote Working Requests and Arrangements

Many businesses were thrown into involuntary work-from-home arrangements when the COVID-19 pandemic first struck. For many employers it worked well, for others it was more challenging.

The issue remains divisive for both employers and employees around the world. Once restrictions had mostly eased off in June 2022, Elon Musk famously ordered Tesla staff to return to the office or ‘pretend to work somewhere else’. In contrast, large global digital companies such as Airbnb and Facebook are allowing many employees to work remotely forever, betting that the policy will keep current workers happy and help attract talent.

Whatever the personal preferences an employer has towards allowing remote working or not, it’s important that they understand their obligations under workplace laws to avoid potential disputes and to ensure relevant policies and procedures are squared away.

Do employees have a right to work remotely?

In short, there is no current Australian legislation granting workers the right to work from home, whether it be full time or part time. However, in certain circumstances it is considered reasonable for employees to request the option to work remotely, especially in some specific cases such as where a worker has a disability and flexible work arrangements would help them to perform their role in a more comfortable capacity.

Employers are encouraged to evaluate any request to work from home on a case-by-case basis. There are inherent costs, risks and benefits associated with any decision to allow or prevent remote working. For example, a decision to allow remote working could lead to greater employee job satisfaction but lower productivity due to a lack of in-person communication, support and oversight. A decision to prevent working from home could lead to an employee grievance. Team culture, nature of work and customer needs all need to be factored into any decision made. What works for one company, team and employee won’t necessarily work for another, even within the same industry.

Employers can use one of the three following models when implementing workplace policies in relation to remote working;

• Discretionary model – where employers can choose to offer remote working options if it suits their business and an employee can choose whether or not to work from home. This is the lowest risk model in terms of avoiding potential disputes over the issue as there is flexibility for both employer and employee.
• Entitlement model – in which employees are granted an unconditional right to request work from home options as it has been incorporated into their employment contract. It is strongly recommended to avoid this model as it sets a precedent that can be extremely challenging to reverse if conditions change for the organisation.
• Requirement model – employees are required, rather than entitled, to work from home. This could be on a full time, part time or as-needed basis. The requirement to work from home will have inherent costs in terms of changing workplace policies if currently operating under a hybrid or all-in-office model.

Working from home disputes

When an employee requests a working from home arrangement and it is refused by an employer, there are three types of workplace disputes which may result from the decision;

• The employee challenges a refusal – under Flexible Work Arrangements of the Fair Work Act, which has somewhat limited legal recourse and will usually lead to an internal review process.
• The employee challenges a failure to make a requested adjustment for disabilities – this challenge would be based on a claim of discrimination by the employer.
• The employee challenges an unfair dismissal – if an employee refuses to come to work unless they are permitted to work from home and they are dismissed on this basis, they can make a claim for unfair dismissal.

In order to get an understanding about how such disputes are evaluated by the Fair Work Commission, we can take a look at recent case findings.

Example 1: Jason Lubiejewski v Australian Federal Police (AFP) [2022]

Outcome:  Dismissal due to failure to comply with a direction to return to work was found to be lawful and reasonable.

Case details:

Prior to the COVID-19 pandemic, Mr Lubiejewski made a request to work from home in order to help alleviate his mental health conditions. He was given special permission for some short-term arrangements by the AFP. Not long after, the pandemic hit and he was directed to work from home full-time due to lockdown requirements.

After the lockdowns were over, the AFP sought to discuss his capacity for work based on current medical evidence, and to provide him with the support he needed to perform his role. The employee failed to engage in discussions and refused to comply with the employer’s directions to return to the office.

The AFP made numerous attempts to facilitate Mr Lubiejewski’s return to work, which included offering him the opportunity to return to the office on a graduated basis and requesting him to provide relevant and updated medical evidence.

After further directions, the AFP ultimately terminated his employment on the basis that he had failed to comply with lawful directions to return to work.

The Fair Work Commission found it was reasonable for the AFP to seek to discuss with the employee what reasonable adjustments may be required for him to return to his workplace safely and had stated they were content to facilitate some work from home, but not on a full-time basis. Therefore, the AFP were within their rights to terminate employment based on a failure to appear at the workplace.

 

Example 1: Ruth Cully v Australian National Audit Office (ANAO) [2022]

Outcome:  Dismissal due to failure to comply with a direction to return to work was found to be lawful but not reasonable

Case details:

The ANAO had approved Ms Cully’s request to work from home until the end of 2020 after providing a medical certificate declaring her “at increased risk of complications from COVID-19” and so that she could care for her terminally ill uncle. Ms Cully later requested various forms of leave in order to take care of her uncle.

In September 2020, the ANAO revoked the approval, based on Ms Cully’s “continued requests for extended leave and the resulting lack of work.”

The ANAO told Ms Cully that she had exhausted all available forms of leave and that her long periods of leave had prevented her from fulfilling the requirements of her role to the appropriate standard. Ms Cully was asked to return to work, despite medical advice suggesting otherwise.

Ms Cully returned to the office. She requested personal leave which was denied. She continued to work in the office. Ms Cully’s uncle died on April 7, 2021 and her employment was terminated on June 2, 2021.

The Fair Work Commission concluded that there was no just cause for Ms. Cully’s dismissal. ANAO made it clear that the reason for dismissal was failure to perform duties rather than unsatisfactory performance. It was found the instructions given to Ms. Cully to return to the office were legal, but unreasonable, due to the unique circumstances. The ANAO’s disregarded Ms Cully’s situation, including her high risk of COVID and her caring responsibilities to a family member who had been sent home in her care, was unreasonable.

Ms Cully was reinstated and the ANAO was ordered to return any lost wages.

What are the impacts of remote working to an employer?

The decision to allow full or part time remote working has the following six impacts throughout a business which all need to considered and managed;

1. Supervision and training
2. Emergency arrangements
3. Management of confidential information
4. Team bonding expenses
5. Management of taking personal leave
6. Management of actual work attendance

Perhaps the most significant of these impacts is the last – management of actual work attendance. This is especially true in relation to overtime payments. Unlike when an employee physically attends a workplace, it can be very difficult to monitor the hours a remote employee is truly working. What processes are in place for additional hours to be recorded or approved? What about after-hours emails? How is employee discretion addressed?

Claims for additional hours worked and how these hours are recorded, approved and justified needs to be done in a manner that doesn’t create distrust between employer and employee. Implementing a combination of different solutions is usually required such as time tracking software, monitoring email activity, requiring self-reporting as well as requiring managerial reports in order to manage accountability and performance.

This issue is further compounded when there are cases of employees working remotely in different jurisdictions. State governments have different laws in relation to long service leave, workers compensation and workplace surveillance. In order to simplify any confusion, employers are encouraged to limit working from home arrangements to an employees’ specified home address so that the laws of their state government apply during their work hours.

Who pays for the cost of remote working?

Currently there is no obligation for employees to pay for employee expenses related to working from home. The issue would only arise if the employee is required to work remotely. Disputes have been a rare occurrence for the Fair Work Commission. Yet it’s important to note that unions are starting to push the issue more and more, so obligations may change soon.

Once again we can take a look at an example case to better understand the Fair Work Commission’s stance on the issue.

Example: McKean v Red Energy Pty Ltd [2020]

Outcome:  Employer not required to cover expenses and unfair dismissal claim was rejected

Case details:

Red Energy employed Mr McKean in a customer service position which required him to use a computer and to speak to customers on the telephone. Mr McKean did not have a work desk at home, so when his employer encouraged employees to work from home at the start of the COVID-19 pandemic, he was permitted to continue working in the office.

When the State of Victoria entered Stage 3 lockdown, Red Energy directed employees who could work from home to do so. Mr McKean was directed to work from home but continued to work from the office. When the employer advised the employee that he needed to sort out arrangements for working from home, the employee responded that his role was redundant if the employer would not provide him with a desk to use at home.  On 8 May 2020, Mr McKean asked if Red Energy would reimburse him for purchasing a desk. Red Energy refused. However, they confirmed he could continue to work from the office for the time being.  Red Energy countered that all necessary equipment had been provided to Mr McKean including a laptop, headset, adjustable chair and ergonomic assessments. A few months later, Mr McKean sent Red Energy an email stating he was resigning effective immediately and lodged an unfair dismissal claim.

The Fair Work Commission held that the employee’s claim that he was forced to resign was “entirely without merit”. The employer’s refusal to buy a desk for the employee was not something which reasonably forced him to resign and he could have taken other measures such as buying his own desk or borrowing one.

Going forward

Employers need to take the decision of remote working into their own hands and can’t rely solely on directions from the Government.  Even though most pandemic based mandates relating to working from home are no longer in place, societal attitudes have rapidly changed. Employees now have very different expectations and employers who don’t adapt to these expectations may miss out on attracting the best talent.

Ultimately, employers need to evaluate remote work requests on a case-by-case basis. There are many factors to consider, such as the nature of the work required to be completed as well as the culture of the business. Whatever decisions are made, policies and procedures need to be updated and reviewed on a routine basis to ensure they are still working for the company.

Need some advice in dealing with return to office/hybrid/remote working arrangements, policies, and requests? Talk to the experts at Harrisons.