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What happens when an employee refuses to return to the workplace?
19/05/2021
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Mandatory mask wearing in Melbourne
Authors
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Charmaine Tsang
Charmaine Tsang is a partner at HFW
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Steve Bowler
Steve Bowler is a senior associate at HFW

 

For thousands of workers, one of the side-effects of covid-19 was that working from home became the norm, and in many cases, the only option. Now, with vaccinations being rolled out, lockdowns coming to an end, and restrictions easing, workers are being encouraged to return to the workplace. But what happens when an employee refuses on safety grounds? What are an employer’s obligations if a worker wants to continue working from home? Can an employer direct workers to return to work, and is disciplinary action justified if the worker refuses?

Although Australia is slowly getting back to some form of normality (the odd snap lockdown in Western Australia excepted), for some workers, the potential for exposure to covid and the ongoing risk of community transmission makes returning to the workplace (and using public transport there and back) a scary proposition.

Most employers have been fairly flexible in allowing staff to continue to work from home where possible, and have ensured that all necessary health precautions are being taken before requiring employees to return to the workplace. However, there may still be some resistance from some staff, particularly those who are (or have family members) in vulnerable categories.

So, what options does an employer have if an employee refuses to come back? First, employers are entitled to issue employees with a reasonable and lawful direction to come into work, and if an employee refuses to comply with that direction, this can provide legitimate grounds for disciplinary action. However, before going down that route, it is worth discussing the issues with the employee directly to address what their concerns actually are.

Is the employee worried there is a risk of exposure at the workplace? Needless to say, employers have a duty under workplace health and safety law to ensure that risks to workers’ health and safety are eliminated or minimised before requiring staff to return.  However, if the employer has implemented a covid-safe plan and all precautions are being taken (such as increased cleaning, social distancing, and plenty of hand sanitiser available), it may just be a case of explaining the steps that have been taken to the employee to help alleviate their fears. Is the employee daunted by the prospect of riding a crowded train to and from work? If operationally feasible, the employee’s start and finish times could be adjusted so they are not commuting to and from work during peak periods.

...the best thing an employer can do as a first step when confronted by an employee who is worried about being back in the workplace is simply to listen to them

If, after consulting with the employee, the reasons for not wanting to come back to the workplace seem slightly short of genuine, and the employee refuses to comply with a direction to attend work, disciplinary action may be the next option, including potential termination of employment. The Fair Work Commission has already indicated that covid cannot be used as an excuse to not attend work without a bona fide basis. In December last year, the commission found in Ian Howard v Pinnacle People [2020] FWC 6975 that the dismissal of a casual events food and beverage attendant who repeatedly declined or ignored shifts that had been offered to him was not unfair in the circumstances. Although the employee had argued he did not accept the shifts because he believed they were in high covid-risk environments, the commission did not agree, finding the employee had, by his conduct “demonstrated an unwillingness to be bound by his contract of employment”.

However, it should also be noted that some employees are entitled under the Fair Work Act to request flexible working arrangements, such as changes to hours of work (start and finish times), patterns of work, and locations of work (working from home), and these requests must be given genuine consideration by the employer. So, for example, if an employee has carer’s responsibilities, a disability, is 55 or older, and has been with an employer for at least 12 months, any request by the employee to change their working arrangements because of their circumstances can only be refused if there are reasonable business grounds to do so.

In the end, whether or not an employee has a legitimate reason to be reluctant to return to the workplace will depend on individual circumstances (someone who works in a higher risk environment, such as a hospital or hotel used for quarantine purposes, may have more of a basis to be concerned than someone who works in an office). But given the understandable fear and uncertainty that many still feel in the aftermath of covid, perhaps the best thing an employer can do as a first step when confronted by an employee who is worried about being back in the workplace is simply to listen to them.

Although there is certainly hope that things will continue to improve, as we slowly come out on the “other side” of the pandemic, these issues are likely to continue posing challenges for businesses attempting to return to “normal” in the workplace.