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Can you be dismissed for defying an office return?

Female employee upset having to leave her child at home and return to the office for the first time in two years. If she doesn’t go back, she will not be paid. Is this Fair? Can you be dismissed for defying an office return? is a question asked by thousands of Australian employees every week at present.

Worker dismissed for breaking WFH rules wins $26K

Dismissals involving employees who have violated their employer’s work from home rules have become more commonplace. It is no surprise, considering many organisations are now offering flexible hybrid working arrangements.

However, research from the Australian HR Institute reveals that employers are increasingly mandating staff to work more days in the office. Its survey of almost 500 Australian organisations showed that in 2023, 48 per cent required their staff to work in the office for between three to five days per week. This is up from 37 per cent in 2022.

So what happens if you defy your employer’s policy and work from home on days you are meant to be in the office?

Lawful and reasonable directives

Generally, Australian workers are obligated to comply with their employer’s lawful and reasonable directives. This is typically implied in employment contracts. What constitutes “lawful” will depend on whether legislation or an industrial instrument gives an employer the ability to issue the directive. Or if the same limits their powers.

A number of circumstances can determine what constitutes “reasonable.” This includes the nature of the worker’s job, their employment contract and workplace policies and procedures. Failing to comply with a lawful and reasonable directive can be a valid reason for dismissal.

Going back to work is not always a bad thing. Does staying at home make us lazy as we slip into a comfort zone?

Is an in-office mandate lawful and reasonable?

A directive to be present in the office will in most cases constitute a lawful and reasonable directive. This is the case if the directive does not violate a term of your employment contract, award or other workplace instrument.

You may be able to refuse a request to be in the office if your employer has approved a flexible working arrangement that allows you to work from home. For instance, if your arrangement allows you to work from home four days per week, but the mandate stipulates you must do so three days per week. In this case, your arrangement would take precedence.

If you do not have a flexible working arrangement in place, you have the legal right to request one. You may be entitled to work from home if you satisfy certain criteria. For instance, if you have been an employee for at least 12 months. And you are a parent to school-aged children or a carer, amongst other circumstances. You can read more about flexible working arrangements in our blog article here.

What recent Fair Work Commission decisions tell us

The Fair Work Commission has ruled on several cases involving workers who have flouted their employer’s directives around working from home. Each of these cases presented different circumstances around the refusal, resulting in varying rulings. What we can glean from this is it is not always certain that defying an in-office mandate will result in a fair and lawful dismissal.

In the first case we explore in this article, the Fair Work Commission ruled that the worker’s sacking was unfair. This was despite the worker having worked from home in defiance of his employer’s directive. In the second case, the worker’s dismissal was ruled as fair. The workers’ violations of their employers’ WFH rules varied in severity, however. And the two cases featured a different set of attendant circumstances.

Employee being welcomed back. Saying home can be a employee right. Some employees are faking unjuries, particulary mental health in order to justify staying home, be careful what you tell your employer.

Worker fired for defying WFH rules wins $26K

The unfair dismissal case Tomaso Edwards Moro v Insider Au Pty Ltd [2023] involved a Sydney-based worker who was fired for working from home. Tomaso Moro started working for customer service solution provider Insider Au in August 2022 as its full-time digital growth associate. The company’s work from home policy mandated employees to work from the office on Mondays and Wednesdays. In early 2023, Insider Au’s regional director had a discussion with Mr Moro about this, reminding him of his in-office obligation.

“Sorry Tom, I’m calling BS on this”

In August 2023, Mr Moro made a change to his work calendar to reflect that he would be working from home that day. The reason he cited to Insider Au was that the previous night, he had organised a tradesperson to repair his dishwasher. This reason, however, was met with scepticism by the company’s director.

“Sorry Tom, I’m calling BS on this,” he texted Mr Moro upon finding out he was working from home “This is not good enough – you are supposed to give us a heads up WAY in advance as opposed to having me chase you like this.”

Worker is dismissed

The following day, Mr Moro received a call from the director. During this phone call, the director told him “You clearly don’t want to come into the office. It is best to part ways.” He also asked Mr Moro to pen a resignation letter, stating that his last day would be 1 September 2023.

However, Mr Moro did not want to resign. Instead, he emailed the director saying that he would “be happy” to accept his immediate dismissal provided he was paid his notice period. The director agreed, and Mr Moro’s sacking took effect on 1 September.

Employee returning to work on public transport. This incurs additional cost as they are no longer working from home.

Worker contests sacking via Fair Work Commission

Mr Moro subsequently filed an unfair dismissal claim with the Fair Work Commission, detailing several grievances with his termination. He argued that Insider Au had not outlined the reasons for which he was dismissed. Also, the company had not given him any warnings regarding his conduct or performance. That is, other than the director’s comment regarding Mr Moro working from home rather than in the office.

Mr Moro argued that there was no valid reason for his sacking and that he was denied procedural fairness. And not only that, Mr Moro claimed that he was only paid for two weeks of his notice period, instead of the full eight weeks. He also pointed out that he was one of Insider Au’s best-performing employees, having received several sales accolades.

Employer cites worker’s poor conduct

Insider AU argued to the Fair Work Commission that it had several concerns about Mr Moro’s performance, conduct and attendance record. The company specifically highlighted the instance of working from home on the mandated in-office day. It said that Mr Moro was “dismissive” when his non-attendance was raised.

Insider Au also claimed that Mr Moro’s “commitment to [his] role” was lacking. It claimed that he had a record of unexplained absences, poor behaviour, challenging behaviour and dishonesty. The regional director told the Fair Work Commission that he had twice discussed Mr Moro’s flouting of the in-office mandate. And that despite this, he continued to work from home on designated in-office days.

The company also cited the fact that Mr Moro had also said that he planned to resign as he wanted to travel. Then two days later, he rescinded his intention to resign.

Can you be dismissed for defying an office return? Employee clearly doesen’t want to be back at work. This may lower productivity as the employee is demotivated.

Fair Work Commission awards massive payout

At Mr Moro’s unfair dismissal hearing, the Fair Work Commission found several problems with his sacking. It stated that his working from home on an in-office day did not constitute a valid reason for dismissal. The commission came to this finding despite acknowledging that “in-office attendance days had been broached by [the director] in January or February 2023.”

The Fair Work Commission accepted that Mr Moro’s stated intention that he would resign to travel had cast a pall on the employment relationship. It stated that his unilateral decision to work from home on an in-office day was “the trigger for the dismissal against the backdrop of the previous exchanges about resignation.”

Ultimately, the Fair Work Commission determined that Mr Moro’s sacking had been “predetermined, harsh, unfair and unreasonable.” It therefore ordered Insider AU to issue Mr Moro with compensation of three months’ pay at $2,208 a week. In addition to bonuses owned, this amounted to $26,496.

Worker who defied in-office mandate has unfair dismissal claim rejected

The unfair dismissal case Chantelle Major v Strata Management Group Pty Ltd [2023] also involved a worker who flouted in-office directives. However, the Fair Work Commission handed down a very different ruling. Chantelle Major began working for Strata Management Group as a full-time senior manager in March 2022. When she first started, Ms Major was entitled to a flexible working arrangement to work from home.

However, she soon took up the role of business development associate. And with this new role, she was required to work in the company’s Sunshine Coast office four days per week, and its Brisbane office one day per week.

In order to work from home, company policy dictated that Ms Major was required to submit a flexible working arrangement request and gain approval. This was because she would be going through a training period. She was told that after this period, she could revert back to her original flexible working arrangement.

Mother coming home after being at work all day. Clearly the kids would like her working from home.

Employee flouts WFH rules  

On 21 March 2023, Strata Management Group sent Ms Major a show cause letter. It outlined several allegations, asking for her response. The company alleged that she had failed to show up to the office for three weeks. According to its investigation, the company stated that Ms Major’s phone records showed that during that time she had been in Noosa, where she lived.

Strata Management Group also alleged that on two separate occasions Ms Major had left the office at lunchtime. And thereafter, she worked from home without seeking approval. Her phone records confirmed that she had been in Noosa at the time. Additionally, the company alleged that Ms Major had forwarded confidential company emails to her personal email account. This was in violation of the non-disclosure agreement in her employment contract.

Employee is dismissed for breaching WFH rules

In her response to the allegations, Ms Major stated that she had been out of the office as she was on the road meeting clients. She said that she had not told anyone about these meetings. However, the company responded to this claim by saying that there was no evidence that these meetings occurred. It also found evidence that Ms Major had not been in the office on days that she claimed to be.

Strata Management Group found Ms Major’s response to the allegations wanting. And so on 27 March 2023, it dismissed her for violating the rules around being present in the office. Also, for working from home without permission. The company made the decision based on its belief that “more likely than not” the allegations against Ms Major could be proven. She was paid one week’s salary in lieu of notice.

Alot of roles cannot be performed long term working from home. This the employers argument.

Fair Work Commission rejects claim

At Ms Major’s unfair dismissal hearing, the Fair Work Commission ruled in favour of her employer. It found that she had failed to comply with its lawful and reasonable direction to work in the office. It also found that she had been given a reasonable chance to reply to the allegations Strata Management Group made against her.

The Fair Work Commission noted that Ms Major was not able to recall her exact location during the three weeks she was away from the office. Also, that she could not remember which clients she claimed to have met with during this period. The commission therefore found her claims unreliable.

Ultimately, it was found that Ms Major’s absence from the office was in breach of her employment contract. And that combined with her unauthorised disclosure of her employer’s emails, there was a valid reason for her sacking. The Fair Work Commission therefore rejected her unfair dismissal claim.

Many employees sold their vehicles and set up home based offices at considerable expense. To now find they have to go to the office. Many manager’s demand employees return to the office and then don’t turn up themselves.

Conclusion to: Can you be dismissed for defying an office return?

Whether you have faced unfair dismissal, discrimination, bullying, harassment or other workplace rights violations, we can help. A Whole New Approach has been assisting employees in all Australian states and territories for over three decades. We can provide expert guidance to take action through the Fair Work Commission. And to help ensure you hold your employer accountable and receive just compensation. Don’t be forced to resign or abandonment of employment issues because of being forced back into the office or the factory, call us now.

Reach out to us today for a complimentary and confidential consultation. Dial 1800 333 666 to schedule your appointment.

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