FWC clarifies employee’s right to decide when and from where they work

 

By Daniel MacMahon

 

A recent Fair Work Commission (Commission) decision is a timely reminder that, whilst working remotely (post-COVID) is often perceived as ‘the norm’, it’s not an unfettered right.  

 

In Diandong Ren, an employee was found to have been dismissed for valid reasons, including working remotely without permission. In turn, the Commission rejected the employee’s unfair dismissal application.

 

The Bureau of Meteorology (BoM) employee was alleged to have travelled to the USA and accessed BoM IT remotely without permission; failed to return to work in Australia to undertake his duties without permission to work overseas; and made a false statement as to his whereabouts.

 

At the conclusion of a 6-month ‘HR’ process, the employee was dismissed.

 

In finding the employee’s conduct provided a valid reason for dismissal, the Commission said the employee was aware of the requirement to seek “permission and authorisation for leave, and remote access to the BoM’s IT systems for work remotely from within Australia or overseas”. Further, that the employee “considered the formal process of requesting leave and remote working approval (from home or overseas) were not that serious and could be either arbitrarily changed or disregarded provided he performed his duties”, without the “explicit knowledge, permission, and authority” of the BoM. Commissioner Connolly found:

 

"…while I accept Mr Ren had no malice or ill intent in accessing his employer’s IT systems from overseas, I do not accept that he did so with permission and that this finding against him is not valid. While Mr Ren’s intentions may have been honourable in these circumstances, it is not for him to decide when and from where he can access the employer’s IT networks, without prior approval”.

 

Key take-outs

 

The Commission’s decision reinforces the importance of employers having clear ‘WFH’/remote-working policies and procedures. The positive benefit being that such ‘WFH’ policies and procedures will likely be upheld in the Commission in appropriate circumstances. The decision builds on a line of Commission and Court cases dealing with an employee’s right to ‘WFH’. A notable example is the recent Federal Circuit and Family Court of Australia decision in  Homes v Australian Carers Pty Ltd (No 2) [2023] FedCFamC2G 714 (11 August 2023) (austlii.edu.au).

 

Contact HTA Legal if you require any information or assistance on ‘WFH’ arrangements.