In the post COVID-19 environment, one of the most common issues faced by employers is facilitating the return of employees to the office or normal workplace. In particular, many employers have been required to deal with increased reluctance by employees to return to the workplace following lengthy periods of working from home.
One of the things that an employer can (and should) do to minimise disputes about work locations is to make it clear from the outset of the employment relationship what the employee’s role involves, including where they will be required to work. This can be done in an employee’s contract of employment as well as clear workplace policies setting out the employer’s position on things such as working from home.
The value in taking these steps and establishing work locations at the outset was recently affirmed by the Fair Work Commission (FWC) in its decision of Zhang v Parks Victoria [2022] FWC 1203.
In this matter, the FWC was required to determine a dispute between an employee and her employer following the employer’s refusal to allow her to work from home on a full-time and ongoing basis.
The employee was employed as a Financial Transactions Service Officer for Parks Victoria (the Employer). This role included duties such as cheque printing and mailing which required the employee to be physically present in the office and also included duties which required her to attend other locations, such as visiting the post office to collect invoices and post cheques.
It was made clear to the employee in her contract of employment that she would be required to perform her duties at the Employer’s workplace. During the COVID-19 lockdowns, the Employer implemented a roster which required the employee to attend the workplace 3-4 days a week to perform those duties that required a physical presence and allowed her to work from home for the balance of the week.
When the lockdowns ended, the Employer provided employees with a deadline to receive their COVID-19 vaccinations in order to return to the workplace in accordance with the Victorian Government’s directions.
The employee then requested that she work from home on a full-time and ongoing basis. The Employer refused the request, indicating that it was able to provide her with some flexibility (noting it was already considering a hybrid workplace policy) but it could not allow her to work from home on a permanent basis.
In doing so, the Employer noted that many of the employee’s duties required her to be physically present in the office. It had also become aware that the employee had, without authorisation, stopped attending the office as required by the roster and had been working from home on a full-time basis. It noted that this had resulted in the team leader having to fulfil those of the employee’s duties which required a physical presence, which placed an unreasonable burden on the rest of the team and was not a sustainable arrangement in the long term.
In upholding the Employer’s refusal, the FWC had particular regard to the employee’s contract of employment in which the employee had agreed that her ordinary place of work was the Employer’s office.
The FWC found that the ordinary place of work as agreed in the contract must be the default or normal position. Once the lockdowns had ended, the Employer was entitled to insist that the employee carry out her duties on site in accordance with the contract and that this was the case even if some (or even all) of her duties could have been carried out remotely.
When drafting employment contracts, employers should ensure that they clearly set out the requirements of an employee’s role and where they will be required to work.
Establishing these requirements with an employee at the outset can minimise disputes about the employee’s obligations and also provide a sound basis for employers to issue directions to an employee in the event a dispute or disagreement arises.
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