There is no doubt that the COVID-19 lockdowns have changed the way in which most businesses work. While working remotely has provided employers and employees with flexibility, many employers have now started directing employees to return to the workplace either full-time or under hybrid working arrangements.
For example, in August 2024 the NSW Government directed public sector employees to work principally in a workplace and only this month Amazon ordered its corporate employees back to the office five days a week.
When implementing changes such as these, it is not uncommon for employers to be faced with employees who resist returning to the workplace or who provide a medical reason as to why they cannot attend the workplace.
In Reinmuth v James Cook University[2024] FWC 1968, the Fair Work Commission (FWC) has confirmed that it is reasonable for an employer to enforce its expectation that an employee return to the workplace under a hybrid working arrangement, despite providing medical advice that she was only able to work exclusively from home.
The employee worked as an Assistant HR Administrator for James Cook University (the University). She was permitted to work exclusively from home for two years during the COVID-19 pandemic due to her rheumatoid arthritis condition, which rendered her a ‘vulnerable person’.
As restrictions eased in June 2022, the University directed the employee to return to working on campus for three days a week as part of a hybrid working arrangement which applied to all employees within the HR team. In the year that followed, the employee often took paid leave on the days she was required to attend campus due to reported ‘flare ups’ in her medical condition.
Eventually, in July 2023, the employee provided the University with a letter from her treating doctor which recommended that she work exclusively from home due to the difficulties she experienced commuting to work by car. Although, the employee’s doctor noted that there was no medical reason preventing the employee from finding alternate ways to get to campus.
The University maintained its expectation that the employee continued working on campus for three days a week and stated that it was her responsibility to find alternate travel arrangements. It also suggested ways it could support the employee on the days she experienced flare ups while working on campus.
In November 2023, the employee provided a further letter from her doctor which stated that she had been prescribed new medication to treat her condition and it was recommended that she work from home exclusively to assess her response to that medication.
The University considered this advice to be inconsistent with the medical information previously provided by the employee. It therefore arranged for the employee to undergo an independent medical examination (IME) to assess the risks associated with her medical condition and fitness for work.
The IME reported that the employee’s 20-minute commute to work was the barrier which prevented her from returning to work on campus, citing that she experienced uncomfortableness after being seated in a car for 10-minutes.
In response to this medical advice, the University commenced the employee on a gradual return to work plan which initially required the employee to work on campus one day a week, with the remaining four days to be worked from home. Again, during this period, the employee took paid leave on the days she was required to attend campus.
The employee then provided the University with a medical certificate which stated that she was unable to continue working on campus for one day a week. The University requested further information from the employee’s doctor, who stated that she experienced symptoms as a result of her medical treatment including fatigue, lethargy, reduced concentration and cognitive difficulties.
This caused the University to become concerned about the employee’s ability to safely perform her duties both at home and on campus. It therefore informed the employee that it could not accommodate suitable duties for her, and she would require full medical clearance before she could return to work.
Not long after this, the employee resigned from her employment and applied to the FWC to deal with a general protections dispute involving dismissal. The University jurisdictionally objected to the application on the grounds that the employee was not dismissed and had resigned voluntarily from her employment.
In the jurisdictional hearing of the matter, the employee submitted that the University’s conduct of refusing to accept her request to work from home or make reasonable adjustments was done with the deliberate and dominant purpose of forcing her to resign.
The FWC did not accept that the University’s actions were intended to bring the employment relationship to an end. It was clear to the FWC that the University intended to reduce the employee’s exposure to risk of injury following the medical advice received by requiring her to cease working all together until her medical condition or the side effects of her treatment subsided.
The FWC was also not satisfied that the University’s conduct resulted in bringing the employment relationship to an end. It accepted that the University had acted reasonably in supporting the employee to work from home and gradually transition to the same hybrid working arrangement which applied to all other employees in her team.
The FWC considered the University’s request for the employee to return to working in campus to be reasonable. In this regard, it found that the employee worked on campus five days a week prior to the COVID-19 pandemic and the nature of her role required a degree of collaboration, process involvement and team building which was effectively performed on campus.
For these reasons, the FWC held that the employee was not dismissed from her employment and upheld the employer’s jurisdictional objection. The general protections application was dismissed.
Lessons for employers
This decision provides comfort to employers when navigating the return of employees to the workplace, whether that be full-time or under a hybrid working arrangement. The FWC found that it was reasonable for the employer to enforce its hybrid working arrangement, particularly given the level of support it had provided to the employee to transition her back to working on campus and the nature of her role.
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