Employee terminated fairly after refusing to work from the office

As working from home arrangements have been welcomed and widely adopted as a result of COVID-19, some organisations find it necessary for employees to (at least gradually) return to work in the physical office. The following case is an example of where the Fair Work Commission (FWC) had found that the direction for an employee to return to the workplace was a lawful and reasonable instruction and the termination of the employee as a result of his refusal to follow a lawful instruction was justified.

In the matter of Jason Lubiejewski v Australian Federal Police [2022] FWC 15, the Applicant, Mr Lubiejewski, worked in the News and Online Services team of the Australian Federal Police (AFP). His employment was terminated after he refused to comply with the AFP’s directions to return to work in the office. Mr Lubiejewski filed an unfair dismissal application in the FWC, claiming that his employer’s direction was unreasonable as the AFP had failed to provide him with flexible working arrangements and consider his non-work related mental health issues.

Facts

In around 2017, Mr Lubiejewski’s workstation was moved out of the Corporation Communications area of the AFP headquarters to a different area, in accordance with medical advice relating to Mr Lubiejewski’s anxiety, depression and autism.

In March 2020, Mr Lubiejewski provided the AFP with a letter from a different psychologist in which it was suggested that Mr Lubiejewski be seated further from people or be allowed to work from home, to reduce sensory overload and allow him to work more effectively. Shortly afterwards, he commenced working from home due to COVID-19 lockdowns, and thereafter took a period of personal leave relating to his mental health.

In January 2021, the AFP commenced discussions with Mr Lubiejewski about his return to the office. The AFP sought to engage a suitable workplace rehabilitation provider in order to integrate Mr Lubiejewski back to work, discuss his capacity for work based on current medical evidence, and to provide him with the support he needed to perform his role. AFP employees repeatedly invited Mr Lubiejewski to attend meetings or discuss the issue by telephone, but he failed to engage in discussions.

On 29 March 2021, the AFP issued Mr Lubiejewski with a formal direction to, amongst other things, attend work in person in the Corporation Communications area three days a week and work from home on the other two days. Despite the direction, Mr Lubiejewski continued to work from home, and claimed there was no operational reason why he should return to the office. The AFP continued to direct Mr Lubiejewski to return to the office, and he continued not to comply. Mr Lubiejewski asserted that he had a legal entitlement to flexible working arrangements, and that his request to work away from the Corporation Communications area was a reasonable adjustment to his working arrangements.

Ultimately, the AFP terminated Mr Lubiejewski’s employment, on the basis that he had failed to comply with the AFP’s lawful and reasonable directions of 29 March 2021. Mr Lubiejewski commenced an unfair dismissal claim in the FWC.

Decision

The issue in dispute was whether there was a valid reason for the termination of Mr Lubiejewski’s employment.

Mr Lubiejewski did not dispute that he failed to comply with a direction of his employer, but he appeared to suggest that the direction was unreasonable, particularly in light of his ‘entitlement’ to a flexible working arrangement. However, the FWC was satisfied that the direction to return to the office was reasonable and lawful. It was reasonable for the AFP to require up to date medical evidence, and to discuss what reasonable adjustments Mr Lubiejewski required for him to work safely.

Further, the AFP had provided seating arrangements consistent with Mr Lubiejewski’s psychologist’s advice. They had stated they were content to facilitate some working from home, but not on a full time basis. All of these factors had been expressed to Mr Lubiejewski, but he continued to refuse to comply with the AFP’s direction.

Therefore, the FWC was satisfied that the AFP had a valid reason to terminate Mr Lubiejewski’s employment and dismissed his unfair dismissal application.

Take Home Message

As organisations return to some normality after COVID-19 office closures, this case confirms that it is generally reasonable to expect employees to return to the office. However, in some circumstances, it may still be appropriate for employees to work from home, at least from time to time. Employers should ensure they have a working from home policy in place and consider employee requests to work from home on a case-by-case basis, particularly if medical conditions are present.

If you would like to discuss any of the matters raised in this article, please contact Sathish Dasan on + 61 8 8217 1337 or sdasan@normans.com.au, Virginia Liu on + 61 8210 1279 or vliu@normans.com.au, or Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au