Refusal to attend for work reasonable grounds for dismissal

Refusal to attend for work reasonable grounds for dismissal

A dismissed employee has failed to convince the Fair Work Commission that he has an untenable right to perform his work at home rather than attend his place of work when required. This is an issue that is likely to become more commonplace following the recent pandemic outbreaks.

The employee had commenced work with the Australian Federal Police (AFP) in 2010 until the termination of his employment on 25 May 2021. At the time of his dismissal, he was a member of the AFP News & Online Services team, with his duties focusing on publishing new and updated content to AFP’s various social media channels.

In 2017, the employee had suffered from anxiety and depression, and following advice from his treating practitioner, the AFP had allowed him to move his workstation to a separate floor in AFP headquarters. In March 2020, he provided a written request, again supported by medical documentation, that he move to a separate office where he would have fewer interruptions from other staff.

However, shortly after this, he began to work from home following the COVID-19 lockdowns. This arrangement continued until he commenced a period of extended personal leave until early January 2021.

On 5 January 2021, his manager commenced an exchange of emails with him about his return to work in the office, including organising a suitable external workplace rehabilitation provider (WRP) to organise an appropriate workstation and location.

He refused to participate in any discussions with the AFP on several occasions about his return.

In an attempt to progress the matter, the AFP issued him with a Formal Direction from AFP management by letter dated 29 March 2021, noting the organisation’s desire to meet with him and formulate his return, including discussions with a WRP.

Deputy President Lyndall Dean noted that the employee failed to adequately respond to ten written requests from the AFP through March and April 2021 to engage in dialogue to facilitate his return to work.

The Deputy President noted that the AFP had acted consistently with his treating practitioner’s recommendations concerning seating and other arrangements to facilitate his rehabilitation back to the office.

As the Deputy President noted,

His dismissal related solely to his refusal to return to work in circumstances where he had provided no current medical advice or sufficient reason for his failure to do so…Mr (L) was not entitled to set his own working arrangements without his supervisors’ agreement, or to refuse to respond to their repeated requests to discuss the matter…Mr (L) was given every opportunity to return to work, and the AFP did not act with undue haste in reaching the conclusion that his employment should be terminated”.

It is important to note that the AFP repeatedly sought to engage with the employee regarding his concerns and offered him numerous opportunities to provide medical evidence to support his claim to continue to work from home. As noted by the Deputy President, he failed to do either.

The Deputy President accepted that by his actions, he effectively failed to comply with a lawful direction.

Consequently, the application was dismissed.

J L v Australian Federal Police (U2021/5233)

For questions about the pandemic, returning employees to work, 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 dean.cameron@workforceadvisory.com.au

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.

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