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Managing people

Ordering employee back to office and reducing her hours amounted to dismissal

An employee has successfully claimed she was dismissed after a dispute relating to entitlements to working from home.

14 Mar 2024

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

The employer claimed that working from home was only introduced as a response to COVID-19 lockdowns, but the employee was able to approve she had worked from home with permission since 2013. The employer reduced her working hours and claimed that working from home had caused job performance problems. Still, the Fair Work Commission (FWC) found that how the employer handled the situation amounted to unfair dismissal.

Facts of case

The employee claimed that she accepted a job with the employer in 2013 on the basis that she would mostly work from home and only attend the office occasionally because she had two young children, one of whom she was breastfeeding. The children were later home-schooled, with the employee claiming that a Director of the company had encouraged her to do this, and she agreed on the assumption that she could continue to work from home. She claimed that she typically worked 35 hours per week from home, plus the occasional office visits.

The employer disputed the above, claiming that her working from home only commenced during COVID-19 lockdowns and as a response to them. It further claimed that after a recent business review, it concluded that her job could be performed over about 20 hours and three days per week within the office. The employee replied that fewer hours would cause her financial difficulty and that having to work in the office would cause family/carers and other logistical problems (e.g. rearranging schooling). She requested that the new arrangements be put in writing to her and that the consequences be set out if she refuses to accept them.

She rejected the changes and demanded that the employer treat it as a redundancy, but the employer countered that it was providing her with continuing employment. It then dismissed her, giving the reasons of problems with job performance and communication due to not working in the office, plus incompatibility with the planned office/business restructure.

The employee denied there were job performance problems, and the employer failed to produce evidence of any.

Decision

The FWC found that the employer had dismissed the employee. Given it did not provide any evidence of performance/communication issues, it did so without a valid reason, and without notifying her of its reason first or giving her sufficient opportunity to respond. The FWC also found that the working from home arrangements predated the COVID-19 lockdowns.

Compensation was restricted to $5,000, however, because the company went into administration a month after dismissing her and a month later into liquidation, and that would have been likely to have ended her employment.

What this means for employers

The dismissal was unfair because the employer contrived a reason for it (unproven and previously unmentioned allegations relating to job performance), failed to notify the employee of the reason and failed to provide sufficient opportunity to respond to it before dismissing her.

Working from home arrangements should be carefully documented, including setting out hours and tasks worked at home, dates/times when employees may be required to attend the head office, and work communication procedures. In this case, it appears that failure to document them led to a dispute over when working from home arrangements actually commenced.