Refusing to return to work

Being dismissed or facing disciplinary action for refusing to return to the office is something that is on the minds of many Australian workers. Ever since the onset of COVID-19, working from home has become the status quo for millions across the country. The latest figures from the Australian Bureau of Statistics reveal that 40.6 per cent of Australian employees work from home on a regular basis. Among managers and professionals, close to two-thirds (64 per cent) are doing so. If I don’t return to the workplace will I be Dismissed? is important reading to know your rights, read on!

But as we begin to live with the long-term consequences of the pandemic, and now that lockdowns are likely a thing of the past, employers are increasingly attempting to bring more of their workers back into the office.

So, is it fair for employers to request their workers to return to the office? And can Australian employees potentially be dismissed for failing to comply? Can you be dismissed for not following a lawful instruction?, is it abandonment of employment?, is it discriminatory?

Arguments for and against returning to the office

Many employers argue that there are countless immeasurable benefits from having staff working together in an office environment. Some of these include increased collaboration and an improved organizational culture. State governments have also advocated for workers to return to their offices. Namely, to help improve the local economy in many CBD’s where foot traffic has decreased thanks to work from home practices. Also, to ensure commercial buildings continue to be leased by organisations.  

But the work from home mandates that arose from COVID-19 lockdowns proved one thing to workers across the country. Namely, that many jobs can be performed as effectively, if not more so, from home. Many workers now ask the reasonable question of why they need to waste so many hours commuting to the office every day. What’s the net benefit?

Unsurprisingly, many workers don’t want to return to the office

A 2022 survey by the Finance Sector Union reveals a wide reluctance of Australian workers to return to the office. 69 per cent of workers said that they should not be forced to return to the office due to concerns about catching or spreading COVID-19. While 75 per cent were concerned about the time and money they would spend commuting to the office. There is no doubt petrol is getting more expensive, it reduces the carbon footprint in a era where climate change matters. There are a host of reasons to work from home.

The Finance Sector Union has called for employers within the finance industry to offer their workers more choice about returning to the office.

“While workers saved money not travelling to work in 2020 and 2021, the rising cost of living and the rising cost of fuel are hitting workers hard in 2022,” the report said. “Workers should not have to absorb the increased cost of commuting to work when their work can be performed from home.”

The Finance Sector Union

Can I be forced to return to the office?

The Fair Work Commission (FWC) states that employers can direct an employee to return to the office. It says that an employee can’t refuse this direction if it is reasonable and in line with their employer’s legal obligations.

If an employee refuses a direction to return to the office, the employer has the right to take disciplinary action against them. They also have the right to dismiss the employee for refusing to return to the office. However, when dismissing an employee, the employer must ensure they comply with General Protections and unfair dismissal obligations under the Fair Work Act 2009.

Reasons you can refuse to return to the office

An employee is required to follow a direction to return to the office if it is both lawful and reasonable. And in most circumstances, refusal by an employee to follow their employer’s direction would be a valid reason for dismissal. It may be considered abandonment of employment

However, the FWC states that in certain circumstances, “employees may be able to refuse to return to work because of a reasonable concern about their health and safety or another legitimate reason.”

There have been several cases of Australian employees who have been dismissed for refusing to return to the office. Here we’ll share two such unfair dismissal cases that came before the Fair work. In one case, the employee was deemed to have had a valid reason not to return to the office, while in the other, the employee did not have a valid reason.

Reading these cases will help you understand what the FWC considers as valid reasons to refuse an employer’s direction to return to the office.

Case #1: Federal police employee faces dismissal for refusing to return to office

In the unfair dismissal case Lubiejewski v Australian Federal Police (2022), an employee with anxiety, depression and autism refused to return to the office.

Prior to the pandemic, the employee Mr Lubiejewski had made requests based on medical advice relating to his anxiety, depression and autism. In 2017, this resulted in him being moved to a different area of the Australian Federal Police’s (AFP) office. And in March 2020, he had requested to be seated further away from people or work from home due to sensory overload caused by his autism. The onset of the pandemic saw Mr Lubiejewski commence working from home.

In January 2021, when COVID-19 was largely being contained across Australia, the AFP initiated discussions with Mr Lubiejewski about returning to the office. The AFP attempted to discuss his capacity to work based on current medical evidence of his conditions. Also, how the AFP could support Mr Lubiejewski to perform his role in the office. Mr Lubiejewski, however, refused to take part in these discussions, declining several phone calls and meetings.

Employee is dismissed for refusing to comply with directive

In March 2021, the AFP delivered a formal direction for Mr Lubiejewski to attend work three days per week in the office and two at home. Mr Lubiejewski, however, continued to work from home full-time. Telling the AFP that there was no reason for him to return to the office. The AFP reiterated its direction to Mr Lubiejewski multiple times. But he still refused to comply, stating that he was legally entitled to a flexible working arrangement.

Mr Lubiejewski was dismissed by the AFP for failing to comply with its reasonable and lawful directions. He subsequently made an unfair dismissal claim with the Fair work Commission.

The FWC rules on the unfair dismissal case

At his Fair work unfair dismissal hearing, Mr Lubiejewski admitted that he refused to comply with the AFP’s directive to return to the office. He argued that this directive was unreasonable given he had an “entitlement” to a flexible working arrangement.

The Fair work, however, ruled that the AFP’s directive to return to the office was lawful and reasonable. The Fair work therefore found that Mr Lubiejewski was dismissed for a valid reason and rejected his unfair dismissal claim.

Case #2: 33-year public servant faces dismissal for refusing to return to office

In the unfair dismissal case Cully v Commonwealth (2020), a 64-year-old Commonwealth public servant continued to work from home despite being directed to return to the office.

In 2020, the employee Ms Cully made a request to her employer the Australian National Audit Office (ANAO) to work from home until the end of year. She had provided a medical certificate stating that she was “at an increased risk of complications from COVID-19.” She also provided medical evidence stating that she needed to take care of her terminally ill uncle.

The ANAO approved the work from home request, on the condition that Ms Cully maintained her performance. Also, that she attended work in person for fieldwork, meetings and a monthly performance review.

Employee has work from home arrangement revoked

But in September 2020, the ANAO revoked its approval based on Ms Cully’s “continued applications for leave and resulting lack of work output.” It also stated that there was “no audit work available that would be appropriate [for Ms Cully] that can be completed entirely remotely.”

Ms Cully was directed to return to the office in October 2020. This is despite receiving medical advice to remain working at home. This resulted in her uncle being placed in palliative care. Ms Cully applied for leave to take care of him, but the ANAO rejected the request, stating that Ms Cully’s uncle wasn’t an immediate family member. Ms Cully took leave anyway, and ANAO directed her to return to work.

Employee’s uncle passes away and she is later dismissed

Ms Cully then provided a medical certificate stating that she needed to take leave until February 2021. She requested that she could work from home while taking care of her uncle. But the ANAO denied the request, issuing another direction to return to the office. It then later issued Ms Cully a notice of intention to terminate her employment due to non-performance of duties.

In March, Ms Cully returned to the office. She applied for leave once again, and when that request was rejected, continued to work at the office. Ms Cully’s uncle passed away in April 2021, and in June, she was dismissed by the ANAO. She subsequently made an unfair dismissal claim with the Fair work Commission.

The FWC rules on the unfair dismissal case

At Ms Cully’s unfair dismissal hearing, the ANAO argued that there was a valid reason for Ms Cully’s dismissal. Namely, her inability to perform her duties and unsatisfactory performance. However, the FWC disagreed. It found that there was no valid reason for the ANAO to dismiss Ms Cully.

The FWC highlighted the ANAO’s disregard for her elevated risk from COVID-19 and her caring duties for her uncle. It rejected the ANAO’s argument that Ms Cully wasn’t a carer because her uncle was not an immediate family member.

The FWC found that the directions for Ms Cully to return to the office were lawful, but unreasonable due to her unique circumstances. It therefore ruled that her dismissal was unfair and ordered the ANAO to reinstate Ms Cully.

Working from home is not for everybody

I think our experiences at A Whole New Approach is typical of many workplaces. After 6 lockdowns, numerous staff with the COVID, Flu and subsequent isolation issues, working from home is a individual thing. Some employees need supervision, are not disciplined enough on the start and finish times, are easily distracted by other aspects in their lives. While others saw the opportunity to work from from home as a new benefit that was to be respected. Human beings like to associate with others, that’s why we have churches, football clubs, charities. To mix, to be with like minded people. Work gives us that.

There is enormous amount of social anxiety through the last two years of isolation. Some employees need to go to work, it brings purpose to their lives. Please consider your position carefully, that’s all I’m stating.

Conclusion to: If I don’t return to the workplace will I be Dismissed?

Have you been forced to return to the office?

If I don’t return to the workplace will I be Dismissed? Is very topical subject in 2022/23. There will be a wave of unfair dismissal applications as employers figure out how to get the workforce back into the office and the factories. If you have been forced to return to the office despite having a valid reason not to, you may have the right to challenge your employer’s direction. Under the General Protections provisions, employers have a protected right to issue a complaint to their employer regarding their working arrangements.

Employees also have the right to request a flexible working arrangement if they satisfy certain criteria, which we detail in this article. If you have been dismissed for refusing to return to the office, A Whole New Approach can help you understand if you are eligible to make an unfair dismissal claim. We are not lawyers, nor do we want to be.

We are Australia’s leading workplace advisors and commentators. In the last two decades, we have assisted over 16,000 employees in making unfair dismissal and general protection claims. All fair work matters, including, serious misconduct, sick leave, adverse action

Call us today on 1800 333 666 for a free and confidential conversation.

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