The work-from-home (WFH) era, propelled by the pandemic, appears to be on the way out. Many companies have already mandated in-office days, with three or four being the norm, despite many
employees expressing that they prefer WFH. So this raises the question for employers: can employees refuse to return to the office or do employers have the ultimate say?

What employment law allows

The cornerstone of Australian employment law is the principle that employers can issue "lawful and reasonable" instructions. Unless an employment contract specifies otherwise, this likely includes
directives regarding work location. Therefore, unless an employee has exceptional circumstances
impacting their ability to work in the office, their boss generally can require their return.

When might an employee have grounds to refuse?

There are limited situations where a refusal to return might be justifiable:

• Health or Disability: If an employee has a medical condition making it unsafe or significantly difficult to commute or work in a shared office, they could have a case – especially if their job can be performed equally well from home.
• Contractual Terms: Carefully review your employment contracts. If they explicitly guarantee remote work options or allow for WFH under specific circumstances, you might be bound by those terms.

Can an employee be fired for refusing to return?

The short answer is yes. Failure to follow reasonable directions can potentially lead to dismissal. However, if the termination process is carried out unfairly (e.g., without proper warnings or consultations), an employee may have grounds for an unfair dismissal claim.

How do flexible work arrangements work in employment law?

If employees meet specific criteria, they have the right to request flexible work arrangements. This includes:

• Parents or carers of school-aged or younger children
• Carers for individuals with disabilities or specific needs
• Employees aged 55 or older
• Those with specific medical circumstances
• Victims of family/domestic violence

Employees must have worked with the employer for a minimum of 12 months to be eligible and requests must be in writing.

Employers must consider requests seriously, respond within 21 days and can refuse only on "reasonable business grounds."

Key takeaways

• The tide is shifting regarding WFH, with a return to the office becoming increasingly likely.
• Understand your employment contracts and employees’ specific circumstances, as they impact your rights and responsibilities as an employer.
• If staff have a compelling need for flexibility, explore formal flexible work requests.
• Open communication with your employees is crucial to find a solution that works for everyone.