Flexible working arrangements are becoming increasingly important for organisations attempting to access talent, boost productivity and to improve the work/life balance for employees. Recently, the Fair Work Commission rejected an employee's claim that she was unfairly dismissed as she was working remotely without her employer's consent. This case highlights that an employee working from home without the consent of the employer, combined with other reasons, may constitute a valid reason for dismissal.
The employee was initially employed as a Senior Strata Manager in March 2022 and transitioned to a Business Development Associate in late 2022. This required her to relocate to the Sunshine Coast from the Brisbane Office. While her earlier role offered flexible working arrangements, her new role required her to be present at the Sunshine Coast office 4 days a week and the Brisbane office once a week. The applicant was entitled to apply for flexible working arrangements however no such request was submitted.
Around early March 2023, the employer was notified by the Community Manager of the Sunshine Coast office that the employee was not in attendance at the office for over a period of 3 weeks on or around late February. Further, a colleague submitted evidence to the effect that her office was deserted since at least 24 February 2023. Following an investigation and a show cause event, the employer terminated the employee's position on three grounds:
- She forwarded private internal emails to her personal email and deleted the emails to hide her actions;
- She failed to attend to her duties at the Sunshine Coast office during her usual work hours; and
- She had during her work hours, left for lunch and failed to return to the office for the rest of her working day.
While the applicant contested these allegations, there was overwhelming evidence presented by the employer and her colleagues to confirm these allegations.
The Commission found that in relation to the second allegation, the failure of the applicant to comply with the respondent's lawful and reasonable directions concerning the procedure for applying for a hybrid working arrangement, and failure to report on her whereabouts when not in those locations constituted a valid reason for dismissal.
The Commissioner stated that it was apparent from the evidence that the employee was not entitled to the same flexibility arrangements she enjoyed prior to her transition and that she was expected to work in person at the Sunshine Coast office and Brisbane office and to report any absences with her work team.
Further to this, the employee was given sufficient opportunities to respond to the allegations. While the respondent refused a request by the applicant to view internal records for her show cause event, the Commissioner was satisfied that the respondent's failure to provide this information to the applicant did not affect the outcome whatsoever. As such, the Commissioner found that the applicant was given a reasonable opportunity to respond to the allegations through the show cause process which tipped the case in favour of the employer.
The current working trend seems to favour a hybrid approach. Despite this, employees are still required to follow proper procedures enacted by the employer to access these arrangements. A failure to do so may lead to a valid reason for dismissal. Hence, employers are encouraged to maintain clear policies on how flexible working arrangements can be accessed by their employees. It is important to note that following the Secure Jobs Better Pay Amendments, the following circumstances are when the employee can request flexible working arrangements:
- The employee is pregnant
- The employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
- The employee is a carer
- The employee has a disability;
- The employee is 55 or older;
- The employee is experiencing family and domestic violence
- The employee provides care or support to a member of the employee's immediate family, or a member of the employee's household who requires care or support because the member is experiencing family and domestic violence;
- An employee who is a parent or has responsibility for the care of a child; and
- An employee who is returning to work after taking leave in relation to the birth or adoption of the child.
However, employers are still entitled to reject the request if they have reasonable business grounds in doing so.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.