With the pandemic exposing employees to a ‘new’ way of working from home, many employees are now hesitant to return to the office. With many businesses keen to get their staff back into the office to support staff development, culture or productivity, employers may be wondering whether they can order their employees to return to the workplace.

What the law says

In the eyes of the law, employees must have a reasonable excuse to continue working from home, including family or carer responsibilities. Working from home is not an automatic employee entitlement, even if a person’s job is not customer-facing and does not directly mix with other employees. Thus, employers can reasonably insist on employees coming back to the workplace as bringing employees together to interact and supervising work is part of maintaining a well-functioning business. Therefore, unless a reasonable excuse is presented or a previous request has been approved, businesses can enforce employees returning to the office.

Working from home requests

The Fair Work Act 2009 (Cth) permits people to request flexible working arrangements. This was in place before COVID-19 hit. Refusing an employee’s working from home request, which is made on the reasonable grounds of carer responsibilities, disability or age can thus be a breach of this act. Moreover, most modern awards contain provisions allowing employees to make requests for flexible working arrangements. This has also been utilised prior to COVID-19.

Therefore, in the eyes of the law, employees are allowed to request flexible working arrangements if these requests are made on reasonable grounds. However, if there is no request or the request is not reasonable, there is no legal assurance that employees can work from home and technically, employers can order employees to return to on-premises work.

Case Study: Example of Legal Implications

The Lubiejewski v Australian Federal Police (2022) case presents an example of the complications which can arise from disagreements over working from home versus returning to the workplace. In this case, just before COVID-19 hit, an employee who suffered from depression, anxiety and autism spectrum disorder applied for permission to work from home for health-related reasons.

The primary job responsibilities of the employee could be performed remotely with no issues, and thus, he was given permission to work from home for a short period of time. However, once the pandemic hit, everyone in this workplace, including himself, was ordered to work from home anyway. After the lockdowns concluded and employees began to return to the workplace, the employer began to discuss how they could support this employee in returning to the office. However, the employee failed to engage in these discussions with the employer, and refused to comply with the employer’s directions to return back to the workplace. It was because of this and several other directions to return, that the employer decided to terminate this employee’s employment as he had failed to comply with reasonable and lawful orders.

Since the employer had attempted to ask for updated medical advice and tried to discuss how the employee could work safely through providing seating arrangements in line with the employee’s psychologist’s advice, the Fair Work Commission resolved the dismissal claim in favour of the employer. This was because it was believed that the employer asked the employee to return on a lawful and reasonable basis, through also offering occasional working from home opportunities.

Ultimately, when it comes to ordering employees to return to the office, it is not just about being vigorously compliant with the law, but rather considering a compromise which may work best for both the employees and the business as well.