Fair Work Commission finds that a failure to attend the office is a valid reason for dismissal

In the recent decision of Major v Strata Management Group Pty Ltd [2023] FWC 2276, the Fair Work Commission (FWC) has found that an employee of a real estate management company was lawfully dismissed for failing to attend her place of employment at the request of her employer, amongst other reasons.

Facts

Ms Chantelle Major was employed by real estate management company, Strata Management Group Pty Ltd (Strata). At the time she was dismissed, Ms Major was employed in the position of Business Development Associate on a permanent basis. Ms Major resided in Noosa, and it was agreed that she would perform the duties of her role primarily from Strata’s Sunshine Coast office.

On 21 March 2023, Ms Major received a show cause letter from Strata setting out three allegations of misconduct against her, as follows:

• An allegation that Ms Major forwarded private internal Strata emails to her personal email account in breach of the non-disclosure terms of her employment agreement. (Allegation 1).
• An allegation that between 24 February 2023 and 12 March 2023 (Relevant Period), Ms Major had failed to perform her duties primarily from Strata’s Sunshine Coast office. To support this allegation, Strata produced call records from Ms Major’s company mobile phone showing that a significant number of calls had been made from the Noosa area (Allegation 2).
• An allegation that, on 7 February 2023 and 9 February 2023, Ms Major left Strata’s office at lunchtime to work from home despite not being authorised to do so. Phone records from both of these occasions showed that Ms Major had made a significant number of calls from the Noosa area during this time (Allegation 3).

(collectively, the Allegations).

On 27 March 2023, after considering Ms Major’s response, Strata determined to dismiss Ms Major on the basis that it was ‘more likely than not’ that the Allegations against her could be substantiated. Ms Major was paid one week in lieu of notice.

Ms Major made an application to the FWC on the grounds that she had been unfairly dismissed. The matter subsequently proceeded to a hearing.

Decision

In determining the matter, the FWC considered the merits of each of the Allegations.

Allegation 1

In response to Allegation 1, Ms Major submitted that forwarding emails to herself could not be ‘disclosure’, as disclosure requires the revealing of previously unknown information to a third party. Whilst the FWC did not consider the merits of Ms Major’s submission directly, the FWC did consider that the forwarded emails were work related and contained sensitive information. The FWC was also satisfied that Ms Major had no valid reason to have forwarded the emails to herself. Accordingly, the FWC found that Ms Major’s conduct in this regard was in breach of her employment agreement.

Allegations 2 and 3

In response to Allegations 2 and 3, Ms Major submitted that as part of her role as Business Development Associate, she was required to visit sites and clients, which required her to perform part of her role out of the office. Despite this submission, Ms Major was unable to recall her exact whereabouts, nor the names of any of the clients she may have called or visited during the Relevant Period, or on 7 and 9 February 2023. Additionally, as Ms Major had not entered any out of office meetings in her work calendar, which, as a matter of company policy, was a requirement to have such meetings approved, Strata argued that there was no rationale for her to have been away from the office during business hours.

Ms Major also contended that when she was hired, she was informed by Strata that her work arrangements were flexible, and that she was permitted to work from home. In response, Strata submitted that these flexible working arrangements only applied to the role Ms Major was initially hired for, and did not carry over to her role as Business Development Associate.

In reaching its decision on these points, the FWC began by noting that Ms Major’s failure to recall her exact whereabouts during the Relevant Period tended to suggest that her evidence was unreliable. This perceived unreliability combined with the fact that Ms Major could not recall which clients she visited during the Relevant Period led the FWC to conclude that it was likely that Ms Major was not out visiting clients or working during the Relevant Period, but rather, was at her residence in Noosa, consistent with the locations of her call records.

For the same reasons, the FWC accepted that it was likely that on 7 and 9 February 2023, Ms Major had left Strata’s Sunshine Coast office, and subsequently returned to her home in Noosa.

Considering Ms Major had not been authorised by Strata to attend any out of office meetings, the FWC concluded that Mr Major had not been permitted by Strata to work remotely on these occasions. The FWC accepted that the flexible working arrangements that applied to Ms Major’s previous role did not apply to her role as Business Development Associate.

Accordingly, the FWC found that Ms Major’s lack of attendance at Strata’s Sunshine Coast office was a breach of her employment agreement. The FWC was satisfied that this combined with Ms Major’s unauthorised disclosure of company emails constituted a valid reason for her dismissal, and therefore her unfair dismissal application was dismissed.

Take Home Messages

This matter serves as a reminder that employees are not automatically entitled to flexible working arrangements. Employers who implement flexible working arrangements, or those considering doing so should ensure that they have clear and robust policies in place, and that individual flexibility arrangements are used, where necessary. Employers should be aware that an employees’ failure to attend the workplace may constitute a valid reason for their dismissal.

For employers whose employees are expected to handle sensitive information, this case also highlights the importance of having robust contracts and policies in place which deal with the handling and disclosure of such information. These documents should establish the circumstances where an employee is permitted to disclose sensitive information, and the consequences of unauthorised disclosure.

For more specific information or advice on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.