While some employees are eager to return to the workplace, others may be hesitant or resistant to the idea.  

What should you do if an employee refuses to return to work? Can you dismiss them?

Understanding the reason 

Australian Business Lawyers & Advisors workplace relations director Abraham Ash said the first issue to determine was why an employee refused to return to work.  

It could be the employee has concerns about their health and safety, or they may have become accustomed to working from home and do not want to return to the office. It is essential to have open and honest communication with the employee to determine the root cause of their reluctance to return to work. 

“If the reason is nothing more than belligerence, then a termination process can commence, which would involve providing the employee with an opportunity to first explain why his/her employment should not be terminated for refusing a lawful and reasonable direction to attend for work,” Mr Ash said. 

“If the reason is because of illness, then that is a far more complex issue and will require the specific facts of the case to be carefully considered.” 

 If the employee has concerns about their health and safety, the employer should take steps to address those concerns. This could include implementing safety protocols such as social distancing, mask-wearing, and increased cleaning and disinfecting.  

“Medical grounds or work health and safety risks might be justification, for example, if the employee is unable to return to work due to an illness,” Mr Ash said. 

“This is a complex area of the law, and the specific facts of each case will need to be considered, for example, whether there are reasonable adjustments that could be made to accommodate the employee’s illness.” 

The employer may also consider offering flexible work arrangements such as staggered work schedules or remote work options if feasible. 

If the employee is hesitant to return to the office because they prefer working from home, the employer may need to have a conversation about their expectations and the needs of the business. It may be possible to negotiate a hybrid work arrangement that allows the employee to work from home for part of the week and come into the office for the rest. 

Following proper processes 

If an employee still refuses to return to work, despite efforts to address their concerns, the employer may need to consider whether they are in breach of their employment contract. The employer should consult their legal team to ensure they are following proper procedures and are not in violation of any labour laws. 

 In most cases, an employer cannot simply dismiss an employee for refusing to return to work. The employee may have legal protections under employment law, including the right to refuse unsafe work.  

The employer must demonstrate they have taken all reasonable steps to ensure the employee’s health and safety and that the employee’s refusal to return to work is unreasonable, according to Mr Ash. 

The return to the office is also a complex issue that requires careful consideration and communication between employers and employees.    

“The employee should be given a letter recording the direction, the failure to comply with it, and asking the employee to show cause asking why the employment should not come to an end,” Mr Ash said. 

“Depending upon the employee’s response, a termination letter can then follow.

“It is also a good idea to update contracts if there is no express term requiring employees to be in the office.”