The employee started work in 2013 under an arrangement where she would work at least 35 hours from home each week as she was caring for a young child and had to breastfeed a baby at the time.

She stated that one of the company directors even encouraged her to organise for her children to be home schooled, which she did on the basis that this work from home arrangement would continue. However, the business argued that this only occurred due to Covid lockdowns.

The employee said that she was advised in June 2023 that due to a change in software and the business’ decision to hire an accountant, it was proposed that her role would be reduced to 20 hours per week and that these hours would be performed in the office over three days.

She requested these changes be outlined in writing but the business did not provide any further information until two months later when it informed her it was going ahead with these changes.

The employee again asked for this information to be detailed in writing but the business failed to comply. It instead offered her an alternative role as a claims officer but without providing further details including what the pay rate would be.

In the absence of the requested information, and without the ability to plan for schooling and financial support, the employee declined this offer, assuming this would result in redundancy of her role. The next day the business sent her a letter to confirm her termination based on “ineffective communication and the resulting performance issues due to working from home”.

Decision

The FWC reviewed the information provided by the employee and the business, and confirmed the business had not shown a valid reason for the employee’s termination – either on the grounds of poor performance or conduct.

The employee produced emails and correspondence to show that the working from home arrangement had been long term and occurred before Covid. The employee had not been made aware of any performance issues prior to her employment ending, nor was she given an opportunity to respond to the reasons for her dismissal.

The FWC found her dismissal to be unfair and the business was ordered to compensate her $5,000 as it could not reinstate her due to going into liquidation at the time of the hearing.

Learnings for business

This case highlights the importance of following the correct process when ending someone’s employment and making the reason clear. In this case it wasn’t clear to the employee whether her role was at risk due to redundancy or a performance issue.

It also demonstrates the requirement to ensure that an employee’s feedback is considered in a consultation process and in ensuring procedural fairness before making any decisions.

How the Victorian Chamber can help

If you have employees who are working from home or request flexible work arrangements, it is important to understand your obligations when considering these requests. Our library of tools and templates include letter templates and workplace policies which can assist you in responding to and implementing these flexible work requests.

Our experienced team is also here to give you over-the-phone advice about human resources or workplace relations matters. Before you take any action, call our first level of support – the Workplace Relations Advice Line on 03 8662 5222.

Our experienced workplace relations consultants can provide your business with a wide range of support services including, providing strategic advice to manage terminations, redundancies and handling unfair dismissal claims and representation at the FWC.