Conduct and PerformanceGeneral

Working From Home: Some Insightful FWC Decisions


For many of us, working from home at least some of the time this year has become the norm. For quite a significant number of employees, working from home has become a regular and permanent (or at least current) way of working. We have written previous client alerts regarding the steps employers should take to ensure they are meeting their legal obligations if they have employees working from home. In this client alert, we examine some recent cases in the Fair Work Commission (FWC) which have had to deal with the legal implications when working from home, is not all its cracked up to be.

In a recent decision of the FWC, Deputy President Coleman was required to decide whether the employer, Red Energy Pty Ltd, who had encouraged its employees to work from home during COVID, and then required them to do so due to the lockdown in Victoria, had a positive obligation to provide its employees, and more particularly the applicant, with a desk from which he could work at home. The company had provided its employees with laptops, headsets, adjustable chairs, ergonomic assessments, and access to occupational therapists, but refused to provide the applicant with a desk. The Applicant argued that he had recently moved house, did not have a desk and was not in a financial position to buy one.

The Applicant argued that he had no choice but to resign given he could not work as the company had refused to buy him a desk. The Applicant then commenced an unfair dismissal claim. The Deputy President however found that the Applicant did not have to resign but chose to do so. The FWC found that the Applicant could have remained employed and bought himself a desk.

The decision is illustrative of a pattern we are seeing emerge, where employees now feel that they have the “right” to work from home and can demand that the employer facilitate that this occur. This is not in fact the case, unless you as an employee are unable to attend for work (for example because of a lockdown or requirement to isolate), you do not have any “right” to work from home. In fact, even in those circumstances, it is open to the employer to require the employee to take paid or unpaid leave. If an employer however directs employees to work from home, it does have certain obligations to ensure the employees are able to work from home. It may be that if the employee cannot purchase or acquire the necessary equipment to enable the employee to perform his or her duties, the employee can refuse to do so, but this is not the same as terminating the employment, and nor does it mean the employee is forced to resign as is demonstrated by the Red Energy decision.

What about the difficulties of managing behaviour and performance of employees working remotely? This issue was front and centre in another recent FWC decision. In this recent decision by the FWC, the FWC has found in favour of an employee who had commenced unfair dismissal proceedings as a result of her summary dismissal.

The company argued that the employee, who was a sales representative who worked remotely, failed to provide weekly sales reports for which she had been previously warned, had several customer complaints and had a poor attitude and lack of respect for management. The final straw for the Company was the fact that it appeared from the employee’s Instagram account that she had conducted personal activities during working hours.

The FWC found that the company had conflicting and competing expectations for its employee including requiring daily sales reports, service all customers, comply with new reporting obligations and do so for less pay in the COVID-19 climate. Although the FWC found that the reporting failures warranted formal performance counselling they were not sufficiently serious to amount to a valid reason for termination. The same conclusion was reached in relation to the other grounds of dismissal sought to be relied upon by the employer, with the FWC finding that:

“When COVID-19 hit, the combination of reduced hours to do the job, demotivation arising from reduced hours and pay and an additional reporting obligation combined to create a set of circumstances in which an objective assessment of performance was fraught.

“Yet in that very context untested assumptions about conduct from social media posts led to an unfair conclusion that [the salesperson] had fooled the business.”

It is evident that in the context of COVID-19 and the fact that the employee was working remotely, objective assessments of her performance became difficult. Ultimately the decision to terminate her employment was found to be unfair.

What these two recent decisions illustrate, is the complexity that working remotely (and especially from home) brings to the employment relationship. Appropriate performance management and maintaining employee morale and a positive and cohesive culture is an enormous challenge for most employers most of the time. This task has been exacerbated by the increase in the number of employees working from home. Employers and employees alike need to adjust to this “new normal’ by being more mindful of the challenges faced by remote working.

It is illustrative of the complexity of the issues surrounding working from home, that the ACTU’s national executive is currently debating a Working from Home Charter of Rights, which will amongst other things seek to address the issue of “turning off” as well as privacy and data protection.

We are Here to Help

Working from home can create a number of complex and competing challenges for employers and employees. We are here to assist our clients ensure they are compliant with all their legal obligations including ensuring that if employees are working from home, they remain a vital and connected part of the team.

If you require further information in relation to any aspect of this client alert or assistance in dealing with an employment law related issue, please feel free to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

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