Can I force my employee to return to working from the office?

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By Rachael Sutton, Partner

The Fair Work Commission has upheld the dismissal of an employee who had been predominantly working from home on the basis that her lack of vaccination status meant she would potentially be unable to fulfil the inherent requirements of her job. One of those requirements was that she be ready, willing and available to attend their place of work as and when required: Ursula Bernadette Gee v Eastern Health [2022] FWC 932 (22 April 2022)

The employee, a 61 year old lady, had been working for almost 6 years for Eastern Health Telephone and Online Services Unit (TOLS). TOLS is part of a business unit known as “Turning Point”, which provides telephone and online services for those seeking help for clients with addiction issues.

Prior to the start of the COVID-19 pandemic the employee worked exclusively from Eastern Health’s Richmond premises and did not work from home. Following the start of the pandemic and the Victorian Government’s declaration of a state of emergency she started working from home. The employee was also working on site one day per fortnight to assist the TOLS operation coordinator with staff rostering activities and her attendance was more frequent toward the end of 2021 before she was dismissed, being two days a week.

The employee would not provide her vaccination status to the employer and under the relevant public health direction the employer was required to ascertain the vaccination status of their employees prior to them attending in person for work.

The employee argued that as she had been performing her duties from home which were administrative in nature and did not involve any “face to face” interaction and she should continue to be permitted to work from home as she had been doing since start of the COVID-19 pandemic whether she was vaccinated or not.

The employer in this case successfully argued that being able to confirm her vaccination status and the requirement to be vaccinated to attend the work site was an inherent requirement of her job and she did not have a have the right on a permanent basis to work from home as part her duties required her to attend the work site from time to time and she was required to vaccinated in order to do so.  As the employee did not have a medical contra-indication she was not exempted from having the vaccination.

The Commission accepted that there had not been a variation of her employment contract that permitted her permanently working from home and that the employer had only offered the employee the opportunity to work from home as a result of restrictions imposed by the public health directions. This arrangement was not sufficient to effect a permanent change in the requirement to work from the employer’s premises.

The Commission noted however that there was no evidence that the employer had considered an exception in the relevant public health direction (at the time of considering her termination) to the effect that there may be circumstances in which it would be reasonably practicable for an employee to work at their ordinary place of residence and that this may reasonably be a basis not to demand evidence of their vaccination status.

Nonetheless the Commission found that because the employee was required at the time of termination to:

  • attend the workplace from time to time, even if that was infrequently;
  • as a consequence of the public health directions applicable at that time, to have provide her vaccination or excepted person status and that not to do so meant she would potentially be unable to fulfil the inherent requirements of their job; and
  • that she be ready, willing and available to attend their place of work as and when required;

that the termination was valid even though they did not specifically refer to the fact that they could not accommodate a working from home exemption.

Whilst an employer may generally have the legal right to direct employees who have been working from home due to COVID-19 to return to the office, this decision reinforces the importance of checking the basis upon which they were offered the right to work from home, the specific provisions of their contracts of employment (if identify the office as the primary place of work), your work health and safety obligations and the provisions of any public health direction or orders that may continue to apply to that work. If an employee does refuse to return to the office. Find out why they are unwilling to return.  Consider those reasons as you may need to make reasonable adjustments which include allowing them to work from home for a further period.

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