Employee bid to undertake all work duties from home rejected
The Fair Work Commission has rejected an application by a female administrative employee that she be allowed to undertake her work duties completely from home on a full-time basis. The case again highlights the likelihood of increasing agitation by employees for more workplace flexibility following the disruption posed by the COVID-19 pandemic.
The employee, Ms Z, commenced employment with Parks Victoria on 11 January 2021 in the position of Financial Transaction Services Officer on a full-time basis, working 76 hours per fortnight. She is part of a small team responsible for processing and managing the Accounts Payable and Accounts Receivables functions for the organisation. Key tasks included processing payments to suppliers, petty cash reimbursements, updating customer details, processing invoices and providing financial records for audits and other management matters.
Her employment contract required her to perform her duties at a site operated by Parks Victoria in Morwell.
The organisation’s initial response to the pandemic in January 2021 was to encourage employees to work remotely or from home as much as possible. Relevantly, Ms Z was encouraged and permitted to perform her duties for one or two days per week at home and to spend the remaining days at the office. All employees were advised these were temporary measures only.
On or about 23 September 2021, Parks Victoria discovered that Ms Z was working from home on a full-time basis without its authorisation. The Financial Transaction Services Team were supposed to be working a roster developed by their Team Leader, which reflected the initial temporary and flexible arrangements.
Shortly thereafter, Parks Victoria became subject to a government edict that relevant workers, including Ms Z, could not attend work if they had not received COVID-19 vaccinations. They advised employees that they expected to introduce a hybrid model whereby approximately 60% of working hours were to be performed in the office and the remainder at home.
On or about 22 November 2021, Ms Z made an application to her employer that she be permitted to work from home for five days a week. At that point, she had not received any vaccinations.
On 7 January 2022, Parks Victoria responded in writing, rejecting Ms Z’s request. They advised her that her request would put unreasonable burdens on other team members, increase their workloads, as well as adversely impact training and leave arrangements. Ms Z responded through the lodgement of an industrial dispute before Deputy President Val Gostencnik.
The Deputy President rejected Ms Z’s application for full-time working from home on several grounds.
He noted firstly that Ms Z had yet to meet the qualifying period of 12 months prescribed under the enterprise agreement before such an application could be made.
Moreover, the Deputy President noted,
“It is uncontroversial that some of her duties could be undertaken remotely, but that takes the matter no further. Since commencing her employment, Ms (Z) has been working from home for periods consistent with the CHO’s work from home directions that Parks Victoria put in place to facilitate working from home. However, once the CHO’s work from home directions ceased operating, Parks Victoria was entitled to insist that Ms Zhang’s duties be carried out on site in accordance with the employment contract … Working from home on a full-time basis was simply not an option, and in the circumstances of the requirements of her employment contract, the refusal to allow Ms (Z) to do so was unreasonable”.
Further, but perhaps not as significant, the Deputy President suggested that the application for flexibility was motivated more to avoid being vaccinated rather than to reflect her actual workplace flexibility requirements.
The relief sought by Ms Z was dismissed.
For queries about employee flexibility requests, negotiating with employees, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to email@example.com
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.