On 16 March 2020, a large energy provider (the Business) sent staff an email encouraging employees to work from home. On 1 April 2020, an employee’s manager encouraged team members to prepare to work from home in anticipation for potential COVID-19 restrictions. The employee advised his manager that he had recently moved to a new house and didn’t have a table or a desk to be able to work from home.

On 8 May 2020, the Business sent an update to all employees about working from home. The employee responded advising he could not afford the cost of a desk. On 11 May 2020, the manager informed the employee he could continue working from the office for a bit longer, but they would not buy him a desk and he needed to prepare himself to work from home.

On 7 July 2020, the Victorian Government imposed restrictions requiring all employees to work from home if they could. The Business confirmed this requirement and informed the employee he must work from home. The Business received an email from the employees’ Union official claiming the employee had been directed to work from home without being given the necessary equipment.

The Business responded and maintained they had provided reasonable equipment, such as a chair, headset, and laptop, but would not be providing desks.

The employee continued to work from the office on 10, 15 and 16 July, despite the direction to work from home. The employee then requested six weeks leave, which the business could not accommodate.

On 20 July, the employee sent an email resigning effective immediately. The employee then filed an unfair dismissal claim, arguing that the Business’ refusal to pay for a desk or to grant him leave, left him no choice but to resign.

The decision

The Fair Work Commission (the “Commission”) rejected the employee’s argument that he was forced to resign, contending the employee could have simply bought a desk instead, stating “on any reasonable view, the prospect of having to pay a small sum to buy a desk was not a matter that forced Mr McKean to resign.”

The business had provided the employee with ‘adequate resources’ and it was ‘reasonably practicable’ for the employee to work from home as per the stay-at-home directions. The Commission also considered the employee’s request to take six weeks of annual leave was unreasonable on such little notice.

The Commission also said, “[the employee] was not forced to resign from his employment because of conduct, or a course of conduct, engaged in by the company. He was not placed in a position where he had no reasonable choice but to resign. Nor was he otherwise dismissed on the employer’s initiative for the purpose of s 386(1). The company’s jurisdictional objection is therefore upheld, and [the employee’s] application is dismissed.”

Learnings for business

This case highlights the changing conditions and requirements of businesses when employees have been or are required to work from home. The COVID-19 situation has changed the way many businesses operate, and those changes will likely continue to apply in some guise.

Under the WorkSafe Guidelines and relevant Occupational Health and Safety laws, employers need to provide adequate resources to support employees working from home, and these may vary from business to business. Employers should be aware of their obligations and work with employees to ensure their remote work environments are in line with the guidelines and legislation.

How we can assist

The Workplace Relations Advice Line has been speaking to many affected businesses and has a wealth of information in relation to the JobKeeper scheme and associated legislation, including recent Fair Work Commission decisions. Complete Members have unlimited access to the Advice Line as part of their membership.

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

• Award interpretation, classification and minimum entitlements
• Disciplinary processes, performance management and termination
• Personal illness and injury
• Parental leave and flexible working arrangements
• Redundancy
• Occupational Health and Safety and WorkCover

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

[2020] FWC 5688