Providing Adequate Resources to Work From Home – Recent Fair Work Commission Decision
While there is continued risk that any jurisdiction in Australia may be subject to further lockdowns due to COVID-19, it is central that employers and employees are clear about their obligations if a stay at home order is provided.
Earlier this year we wrote about the importance of employers having an appropriate Working From Home Policy (WFH Policy), that article may be viewed here.
The recent decision of Jayson McKean v Red Energy Pty Ltd [2020] FWC 5688 by the Fair Work Commission reinforces our position and provides sound reason for employers to have a clear and robust WFH Policy. We note that while this case is not binding on our Local Government clients, it still provides important lessons.
Facts
Mr McKean, the Applicant, filed an unfair dismissal application in the Fair Work Commission, claiming he was forced to resign from the Respondent, Red Energy Pty Ltd (Red Energy), because he was directed to work from home without the provision of appropriate equipment to carry out his work.
Mr McKean submitted Red Energy failed to take reasonably practicable measures to maintain a safe working environment by expecting him to work from home without a desk.
By way of background, in March 2020, Red Energy encouraged employees to work from home due to the COVID-19 pandemic. On or around 1 April 2020, Mr McKean was informed he could continue to work in the office, however, he was encouraged to make arrangements to work from home. Mr McKean informed his manager that he had recently moved to a new house and did not have any furniture, including a table or desk to enable him to work from home.
Over the following months, Mr McKean continued to work in the office but was advised by management to ‘sort out arrangements’ for working from home.
On 7 July 2020, the Victorian government announced stage 3 restrictions and Red Energy required all employees to work from home, unless there was an urgent need to attend the office. Despite this, Mr McKean continued to work from the office and sought the company provide him with a desk to work from home. Red Energy advised Mr McKean, through his union official, that the company was providing employees with all reasonable equipment and support necessary to work from home, including a laptop, headset, adjustable chair, ergonomic assessments, access to an occupational therapists, and online resources, in line with WorkSafe Victoria Guidelines. A table did not fall within this category and would not be provided to him.
On 17 July 2020, Mr McKean was informed by human resources and management of Red Energy that he must comply with the company’s direction to work from home. Mr McKean then submitted an application for six weeks’ leave. This could not be accommodated by Red Energy.
On 20 July 2020, Mr McKean resigned from Red Energy, later stating the company’s refusal to provide or pay for a desk, or to grant him leave or allow him to work from the office, left him no reasonable choice but to resign and that Red Energy ought to have realised that.
Decision
The Commission rejected each of Mr McKean’s contentions in this matter. While the Commission noted this case failed to meet the jurisdictional threshold, namely the prospect of having to pay a small sum to buy a desk was not a matter that forced Mr McKean to resign, Deputy President Colman went on to address Mr McKean’s submissions.
It was the Commission’s finding that:
- the facts of this case came nowhere near establishing the company’s requirement for Mr McKean to work from home constituted an occupational health and safety risk;
- the company provided ‘adequate resources’ to enable Mr McKean to work from home, in accordance with government Guidelines;
- there was no basis to contend that it was ‘not reasonably practicable’ for Mr McKean to work from home for the purposes of Victoria’s Stay at Home Directions, indeed it was reasonably practicable for Mr McKean to buy a desk;
- because of point three, above, there was no need for Mr McKean to work from the office, urgent or otherwise; and
- the company did not act unreasonably in refusing Mr McKean’s request for six weeks of annual leave, noting this was an excessive period to expect Red Energy to grant on such little notice.
While government Guidelines stated employers should provide, amongst other things, ‘technology and furniture’ to enable employees to work from home, the Commission determined Red Energy sought to provide Mr McKean with adequate resources having regard to the nature of his work. Further, a reference to ‘furniture’ in the Guidelines does not require the provision of furniture as a matter of course and, in any event, Red Energy did provide Mr McKean with furniture by way of an adjustable chair.
The Commission held that it was clearly not the case that Mr McKean was left with no reasonable choice but to resign and that he chose to do so freely. It is noted that his ‘letter of resignation made no reference to compulsion, because none existed.’
Take Home Message
As there is a continued presence of a further wave of COVID-19 and fluctuating restrictions, this case serves as a timely reminder for employers to implement a clear WFH Policy which outlines what resources the business will provide to ensure employees can work from home and what reasonable expenses may be covered.
For more specific information on the information contained in this article or assistance in drafting a WFH Policy, please contact Sathish Dasan on+61 8 8210 1253 or sdasan@normans.com.au, Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, or Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au.
