Working From Home: Honest Flexibility Or A Holiday In Disguise?

Two recent decisions of the Fair Work Commission have highlighted the requirements employers must consider when considering terminating employment in relation to worker absence from work without approval.

These decisions have resulted in contrasting outcomes for the parties concerned.

Tomaso Edwards Moro v Insider Au Pty Ltd [2023] FWC 3148

Background:

Mr Moro was employed as a full-time digital growth associate with e-commerce support solution provider, Insider Au Pty Ltd.

On 31 August 2023, a manager of Insider Au had a telephone discussion with Mr Moro about Mr Moro’s failure to present for work in the office the day before.  During this discussion, the manager stated that it was ‘best to part ways’, and asked Mr Moro to write a letter of resignation.  Mr Moro declined to resign. However, he said that he would be prepared to accept termination on the basis that his 8-week notice period (set out in his contract) was paid out. 

The next day on 1 September 2023, the manager dismissed Mr Moro and advised Mr Moro that he would receive 2 week’s pay in lieu of notice.

In his unfair dismissal application to the Fair Work Commission, Mr Moro referred to:

• his high performance as an employee;
• the lack of any prior warning by Insider Au; and
• the minimal explanation behind the reason for his dismissal.

In response, Insider Au raised its concerns about:

• Mr Moro’s frequent unexplained absences, poor collaboration, challenging behaviour and dishonesty; 
• Mr Moro’s failure to attend the work premises on a number of mandatory in-office attendance days; and
• Mr Moro’s further absenteeism (without notice) on 30 August 2023.

Mr Moro gave evidence that it was necessary for him to stay at home on 30 August 2023 to be present for a tradesperson’s visit and hence had to work from home on that day.  Mr Moro had in fact updated his calendar to that effect but had failed to communicate his plans through the correct channels (WhatsApp). 

Decision:

The Commission was not satisfied there was a valid reason for Mr Moro’s dismissal and found that Mr Moro was not given adequate warning that his behaviour was problematic from Insiders Au’s perspective.  The Commission also found that Mr Moro was not provided with an opportunity to respond on 31 August 2023 and could not access a support person during the 31 August 2023 discussion. As a result, the Commission held that Mr Moro was unfairly dismissed and ordered Insider Au to pay $26,496.00 in compensation to Mr Moro.

Diandong Ren v The Commonwealth of Australia (Bureau of Meteorology) [2023] FWC 3157

In this decision, the Commission upheld the Bureau’s findings of misconduct and subsequent sacking of a research scientist who between August 2022 and October 2022:

• accessed the Bureau’s IT networks without approval while overseas;
• failed to return to the office after a period of approved leave overseas;
• made a false statement to the Bureau when questioned about his whereabouts; and
• failed to comply with the Bureau’s lawful and reasonable direction to supply evidence of his returning to Australia.

While the Bureau’s investigation was ongoing (regarding the conduct above), the research scientist travelled overseas between January 2023 and March 2023 without approval and despite the Bureau rejecting his leave request.  During this time, the research scientist again accessed the Bureau’s IT systems while overseas.

Decision:

Although it was not in dispute that during the Covid period prior to November 2021, the Bureau provided some flexibility to employees (which included the research scientist working remotely, both from home and overseas), the Commission found that the dismissal was not harsh unjust or unreasonable. The Commission:

• found that the Bureau had detailed WFH policies, inclusive of requirements to seek authorisation for leave, remote access to the Bureau’s IT network and permission to work from overseas; 
• accepted evidence that the research scientist was provided access to and made aware of these policies and their requirements of him at his induction and during the course of his employment; and
• accepted that the research scientist was provided with multiple opportunities and extensions of time to provide his evidence and submissions and that the Bureau took all reasonable steps to ensure that all care and procedural fairness was provided to him.  

Lavan’s comments:

Whilst each of these decisions turned on their own facts, the core issues surrounded the two employers’ response to their employees staying away from the workplace without prior approval.  The decisions emphasise the need for employers to develop detailed offsite work policies and ensure procedural fairness to employees.

Lavan recommends that employers regularly review and update their policies, and exercise caution when considering dismissal of employees who absent themselves from the workplace.  If you would like assistance in this area, please do not hesitate to contact Lavan’s Employment, Safety and Education team.