As businesses are slowly coming out of COVID-19 restrictions, employers are commencing a gradual return to work and easing mandatory work from home requirements. With most businesses having enforced work from home arrangements for so long, employers have been left to grapple with how to reasonably direct employees to return to work whilst maintaining flexible working arrangements.

In the recent decision of Jason Lubiejewski v Australian Federal Police [2022] FWC 15, the Fair Work Commission (FWC) has determined that an employer’s direction for an employee to return to the workplace, was indeed lawful and reasonable. Moreover, the consequential termination of said employee was justified, as he refused to comply with a lawful instruction.


Background Facts

Mr Lubiejewski, an employee of the Australian Federal Police (AFP) filed an unfair dismissal application in the FWC, claiming that the instruction from the AFP that he to return to the office was unreasonable as the AFP failed to provide him with flexible working arrangements, considering his (non-work related) mental health issues.

Since 2017, Mr Lubiejewski’s, workstation was moved from the AFP’S headquarters Corporation Communications area as per medical advice on account of various illnesses suffered by Mr Lubiejewski. Subsequently, in March 2020 Mr Lubiejewski’s psychologist advised that Mr Lubiejewski should be seated further from people, or alternatively, permitted to work from home to reduce and manage sensory overload, allowing him to perform his work duties more effectively. Soon after this, due to COVID-19 lockdowns, Mr Lubiejewski began working from home, as well as taking a period of mental health related personal leave.

In March 2021 the AFP attempted to discuss Mr Lubiejewski’s return to the office arrangements on several occasions, via phone and email. The AFP formally directed Mr Lubiejewski, to attend work in the Corporation Communications office three (3) days per week, allowing him to work from home for the remaining two (2) workdays. Despite this formal direction, Mr Lubiejewski continued to work from home, stating that there was no operational reason requiring him to return to the office.

The AFP continued to direct Mr Lubiejewski to return to the office and requested up to date medical evidence, however he failed to comply with those directions, asserting that he was exercising his legal entitlement to flexible working arrangements, and his work from home arrangements were reasonable. On 13 May 2021, Mr Lubiejewski then provided the AFP a medical certificate dated 10 February 2021, which stated that Mr Lubiejewski would ‘benefit from working from home’.

Mr Lubiejewski’s employment was subsequently terminated on 25 May 2022 due to his failure to comply with the AFP’s lawful and reasonable directions.

Following this, Mr Lubiejewski filed an unfair dismissal application asserting that the directions to return to the office were unreasonable.


FWC’s Considerations

The FWC considered that the AFP’s directions were in fact, lawful and reasonable and that it was reasonable for the AFP to require up to date medical evidence to assess what reasonable adjustments were required for Mr Lubiejewski to work safely. The FWC went on to note that it was unreasonable for Mr Lubiejewski to have continued to refuse to comply with those directions and this failure gave rise to a valid reason for dismissal.

As such Mr Lubiejewski’s unfair dismissal application was dismissed.

Key Take Away Points

Employers should take note of this case as an exemplar of sufficient attempts to discuss return to work arrangements and provisions allowing the employee reasonably opportunities to comply. Employers should:

  • ensure they are maintaining best efforts to accommodate flexible working arrangements for employees with disabilities.
  • ensure the obtain up to date medical advice surrounding an employee’s illness or injury (whether work related or not).
  • ensure they provide a sufficient work from home policy in place for employees to adhere too.
  • assess requests for reasonable work adjustments on a case-by-case basis and consider the weight of medical evidence, if present.
  • always exercise due diligence to ensure employees with disabilities are protected from further harm, in turn protecting themselves from potential risks of liability.

 

Employee dismissed for refusing to physically attend the workplace – PCC Employment Lawyers (pcclawyers.com.au)

Employee terminated fairly after refusing to work from the office • Norman Waterhouse (normans.com.au)