With large portions of the workforce continuing to work from home, the recent Fair Work Commission (the "Commission") decision of Jayson McKean v Red Energy Pty Ltd  FWC 5688 provides employers with some guidance on complying with workplace health and safety requirements through an unfair dismissal lens; in particular, in relation to the provision of "furniture" for employees working from home.
In addition to the above guidance, Deputy President Colman has also provided useful commentary on dismissals for failure to comply with a direction to work from home.
The Applicant was employed as a "Customer Assist Specialist" at Red Energy Pty Ltd ("Red Energy"). In March 2020, in response to the COVID-19 pandemic, Red Energy began to encourage employees to work from home. To support its employees working from home, Red Energy offered employees a laptop, headset, adjustable chair, ergonomic assessments, access to an occupational therapist and online resources.
The Applicant advised Red Energy that he was ill-equipped to work from home as he had recently moved to a new house and had limited furniture. The Applicant advised that he did not have a table or desk to work from and that he was under financial pressure due to medical expenses. The Applicant stated that he would buy a desk if Red Energy agreed to cover the cost.
Red Energy refused to buy the Applicant a desk but advised the Applicant that he could work from the office for the "time being".
On or around 1 June 2020, the Applicant was told by the company that he needed to "sort out arrangements for working from home". The Applicant replied that if Red Energy could not properly facilitate his working from home, then his role was redundant. The Applicant was advised that a redundancy was "not on the table".
Following the reintroduction of stage 3 restrictions in Victoria in July 2020, the Applicant was told that he was required to work from home. Contrary to this direction, the Applicant continued to work from the office. After the Applicant was advised that he must comply with the direction to work from home, the Applicant applied for 6 weeks leave giving only 3 days' notice. This request for leave was refused.
The Applicant subsequently resigned and commenced unfair dismissal proceedings asserting that he was "forced" to resign and was hence, constructively dismissed. Red Energy raised a jurisdictional objection arguing that the Applicant had not been dismissed at the initiative of the employer.
The Applicant argued that the Red Energy's conduct, namely the refusal to provide or pay for a desk, grant him leave or allow him to work from the office and its failure to consider his personal circumstances, left him no reasonable choice but to resign.
The Applicant further submitted that the conduct of Red Energy contravened its duties under the Occupational Health and Safety Act 2004 (Vic) (the "OHS Act") because it failed to take reasonably practicable measures to maintain a safe working environment by expecting him to work from home without a desk. In support of this proposition, the Applicant referred to the Guide for Employers: Preparing for a Pandemic issued by WorkSafe Victoria (the "Guide") which states that employers are to provide adequate resources for employees to support working at home including "technology and furniture".
The Commission rejected each contention raised by the Applicant finding the argument that he was "forced" to resign to be entirely without merit. The Commission upheld the jurisdictional objection of Red Energy and dismissed the Applicant's application.
In coming to this finding the Commission referred to the Applicant's acknowledgement that a desk could be purchased very cheaply and that he could afford to buy one. The Commission did not consider the prospect of having to pay a small sum to buy a desk to be a matter that "forced" the Applicant to resign. In the alternative, the Commission found that the Applicant chose to do so freely.
In respect of the allegations of an OHS Act breach, the Commission found that the facts came "nowhere near" establishing that Red Energy's requirement for the Applicant to work from home constituted an occupational health and safety risk, let alone a contravention of any provision of the OHS Act.
In considering the Guide, the Commission noted that the Guide referred to "technology and furniture" as examples of "adequate resources" for working from home. The Commission found that the Guide did not require the provision of "furniture" as a matter of course and that what is required will depend on the circumstances.
The Commission did not consider the refusal of 6 weeks' leave to be unreasonable and noted that the Applicant did not propose a shorter period.
Refusal to Comply with a Direction to Work from Home
Despite the jurisdictional objection being upheld, Deputy President Colman provided further commentary on the repeated refusal of the applicant to comply with the direction to work from home.
Not only did Deputy President Colman consider the direction to work from home in these circumstances to be plainly lawful and reasonable, in his opinion Red Energy would have been entitled to dismiss the Applicant for failing to follow a lawful and reasonable direction. While Red Energy did not dismiss the Applicant, if they had, Deputy President Colman stated that he would have found a valid reason for dismissal and would not have considered the dismissal to be harsh, unjust or unreasonable.
A copy of this case is available here.
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