Initially, the worker was engaged as an Australian Public Service (APS) employee as a research scientist in the Melbourne office.

He was granted a period of approved annual leave to travel overseas from 23 August 2022 until 16 September 2022.

On 28 September, a supervisor made a complaint that the employee had failed to return to the Melbourne office, was still overseas but claiming to be working in Australia, and was unresponsive during work hours.

As a result, BOM wrote to him requesting information about his movements and why he had accessed his work I.T. account whilst overseas. He failed to provide BOM a valid response.

BOM investigated these matters and on 21 December provided a draft report for response. He stated that he did not recall his travel details and failed to provide a valid response. As a result, he was informed that a decision would be made based on the information available to BOM.

The employee then stated that apart from working from home (in the USA), he had not logged in to work IT systems and all logins had been compliant. He also advised BOM that his delayed return to Australia was due to an interruption with flights and from obtaining Covid-like symptoms.

After considering the response, BOM issued the scientist its Final Sanction Decision and Notice of Termination.

Decision

Following the termination, the employee lodged an unfair dismissal claim with the FWC.

BOM stated that during the Covid pandemic in 2020 and 2021 it allowed staff to work from home and overseas with knowledge, permission and authority. Workers had to submit requests to be granted on a case-by-case basis.

BOM refused the scientist’s request to work from overseas in 2021 and informed him that he did not have permission to access its services from overseas.

The FWC found that the employee had genuinely formed the impression that he had permission from BOM to work from wherever was convenient to him, and while he had no intention of accessing BOM’s IT systems while overseas, he did not obtain permission as required. The FWC held it is not up to staff to decide when and where to access their employer’s IT network.

The worker returned to Australia 17 days after the date BOM expected him to return to the Melbourne office. The Commission found the dismissal to be fair and valid essentially because he accessed BOM’s IT networks without approval, worked overseas without permission, lied about his location and failed to provide lawful and reasonable evidence about his return to Australia.

Learnings for business 

This decision demonstrates the importance of proactively managing leave requests and clearly communicating expectations while an employee is on leave. Employers should ensure personnel are clear about agreed upon return dates and expectations.

Further, it is important to regularly relay expectations about workplace policies and procedures so employees are aware of any updates and changes – including remote working requirements.

It is useful to conduct refresher training to ensure employees are regularly reminded each year and have no valid excuse to suggest they were unaware of such policies and procedures.

How the Victorian Chamber can help 

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222. Our experienced team are here to give you over-the-phone advice about human resources or workplace relations issues. Our Complete and Connect members have free and unlimited access to expert advice through the Workplace Relations Advice Line.

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