No Right to Work From Home

A recent case of the Fair Work Division of the Federal Circuit and Family Court has found that an employer has not impeded it’s employees workplace rights by denying the employees request to work from home.

In Homes v Australian Carers Pty Ltd, a Disability Support Coordinator brought an adverse action proceeding against her employer, alleging among other things, that she had a workplace right to work from home, and that the employer had bullied and discriminated against her by unfairly refusing her request to work from home.

The employee asserted that the employer had breached the general protections afforded to her by the Fair Work Act in relation to her workplace rights, including:
 

• making an inquiry or complaint to her employer;
• freedom from discrimination, bullying, or harassment at work, and the expectation of compliance with the anti-discrimination and anti-bullying provisions of the Fair Work Act;
• a safe workplace in accordance with the Commonwealth jurisdiction’s Work Health and Safety Act 2011;
• the employer’s duty of good faith toward employees, ensuring they are not bullied, harassed, or discriminated against;
• compliance with the terms of her employment contract; and
• being granted natural justice, or alternatively, procedural fairness regarding any allegations against her.

The Judge determined that there was nothing to establish that the worker had either a legislative or contractual right to work from home.

The employee further argued that she did have a right to work from home because her supervisor was allowed to work from home. However, the Judge did not accept this and noted that her supervisor was working at a different level, in a different job, with a different level of experience, and that this entitled the employer to treat the two employees differently with respect to working from home.

This case provides further clarification on the court’s position in relation to employee’s entitlements to work from home, and conclusively rules that working from home is not a workplace right covered by the general protections provisions of the Fair Work Act.

What this means for Employers

This decision affirms that the right to work from home is ultimately at the discretion of employers. While employers can deny requests to work from home and direct employees to work in the office, it is important to note that any direction must be ‘lawful and reasonable’. A direction is lawful and reasonable except if it is contrary to a government directive (for example, the directions given during the COVID pandemic), or another law.

Employees whose jobs can be done from home and have a legitimate reason to work from home may have grounds to argue that a direction is not reasonable. In particular, certain employees have rights to request flexible working arrangements under the National Employment Standards (NES).

More information from the Fair Work Ombudsman regarding flexible working arrangements is available here.

While a lot of workplaces have wound down on flexibility arrangements following the COVID pandemic, some workplaces choose to offer work from home flexibility arrangements, particularly as employees increasingly view this as an attractive benefit.

As such, we recommend that work from home arrangements are tailored to your individual workplace’s needs. It is important to have stringent policies in place if you do choose to offer employees work-from-home flexibility.

Our Workplace team is available to assist if you require assistance with implementing a working from home policy, or navigating directing employees to work in the office and requests for flexible work arrangements. 

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For further information please contact Danny Clifford, Director of Employment and Workplace Law.