Late last year, our Employment Team covered the case in which an employee was validly dismissed for failing to be present in the office during her mandatory office days. A recent Fair Work decision has outlined the contrary with the absence of the employee on his mandatory office days not forming a valid reason for dismissal. In substance, the facts of each case are quite different and employers are encouraged to exercise discretion in choosing to dismiss employees on the grounds of being absent on their office days given whether the dismissal constitutes an unfair dismissal depends on individual circumstances.


The employee/applicant, Tomaso Moro, commenced employment with the respondent, Insider AU, on the 8th August 2022 on a full time basis as a Digital Growth Associate. Insider AU is described as an E-Commerce Support and Customer Service Solutions Provider.

The evidence provided by Moro contended that Moro was a high-performing employee, which was evidenced through him receiving awards for achieving the highest performance out of the respondent's Sales Development Representatives in the first and second quarter of 2023. There was no evidence provided by Insider AU to suggest that Moro was nothing other than a satisfactory employee as he claimed that he had received no prior warnings about his conduct or performance during his employment.

Insider AU alleged that Moro was absent on a mandatory office day on 30 August 2023. These reasons were also canvassed with evidence that Moro was also absent from the office for coffee at a local coffee shop around January and February 2023 and again on or around May 2023. These cited absences led Insider AU to believe that Moro was dishonest, exhibited challenging behaviour and poorly collaborated with his peers. This reasoning should be contrasted with our earlier case where the employee was absent from her in-office days for a period of 3 weeks.

As a result, following his absence on 30 August, Moro's employment was subsequently terminated on 1 September 2023 and he was awarded payment in lieu of notice for a period of 2 weeks. Interestingly, Moro's employment agreement clearly stipulated that his notice period would be 8 weeks which Insider AU alleged was a mistake in drafting the contract.

Was Moro Unfairly Dismissed under s387 of the FWA 2009

In considering whether the dismissal was harsh, unjust or unreasonable, the Commissioner considered the factors in s387 (a)-(h).

In regard to his absence on 30 August 2023 and its relation to Moro's performance/conduct at work, the applicant had provided proper notice on his work calendar that he could not go to the office due to a tradesperson working at his house. Surprisingly, the regional director, Mr Bullock of his branch contacted Moro to enquire about his absence. When Moro responded to the enquiry, Mr Bullock responded with:

"Sorry Tom, I'm calling BS on this. This is not good enough – you are supposed to give us a heads up WAY in advance as opposed to having me chase you are, like this"

Further, the absences on or around January – February 2023 and May 2023 where the applicant was getting coffee related to informal work related discussions. The Commissioner was not satisfied that Moro's breach of the mandatory office days constituted a valid reason for dismissal. This reasoning should be contrasted with the facts of our earlier article where the applicant failed to provide any reasons at all for her absence from the office over a period of three weeks.

The Commissioner also considered the extent to which the size of Insider AU would impact on the procedure impacting dismissal. The Commissioner noted the following "Given the size of the operations and the availability of access to people and culture/legal advice in effecting the dismissal, it is somewhat surprising that the dismissal was effected in the way it was". Indeed, although Insider AU consisted of 16 people, its international workforce amounted to 1,015 employees spanning over 30 locations. This was combined with the fact that it was the Turkish Office that had effected the dismissal. Given the significant operational capacity of the Insider AU network, the Commissioner implied that Moro's dismissal should have been handled in a much more formalised manner. The evidence suggested that Moro was not notified for the reason of dismissal, was not given an opportunity to respond to the unfair dismissal and was not provided a support person to assist with discussions related to his dismissal. These reasons supported the fact that Moro was unfairly dismissed.

It is also interesting to note the Commissioner's discussion of the payment in lieu of notice period. The email from the global teams to Moro outlined that despite his contract stipulating that an 8 week notice period was to be given by Insider AU, the email outlined that this was a mistake and that instead his notice period was two weeks. Additionally the email had the misconception that the maximum notice period for Moro was 5 weeks which informed the respondent's reasoning that there was a mistake in the employment contract. Rather, the National Employment Standards identify the minimum notice period. Hence, Moro was entitled to a minimum of 2 weeks' notice.

Key Takeaway

As more white collar workers return to the office following the pandemic, we expect more cases related to WFH arrangements to be brought to the FWC. As seen in the contrasting way in which the FWC decided this case and our earlier article, whether a breach of in-office working days constitutes an unfair dismissal depends on the circumstances of each individual case. For example, whether a valid reason is provided for the absence and where warnings are issued and due process is followed.

Employers are therefore encouraged to exercise care in electing in whether to dismiss employees for breaching their obligation to work in the office. Warnings should first be provided and prior to any termination the employee should have an opportunity to respond to the allegations. A failure to do so may result in significant compensation being awarded as seen in this case where damages awarded to Moro amounted to $26,000.

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.