No right to work from home – Employee Rights/ Labour Relations

10 November 2023

Clifford Gouldson Lawyers

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A recent case of the Fair Work Division of the Federal Circuit
and Family Court has found that an employer has not impeded
it’s employees workplace rights by denying the employees
request to work from ،me.

Homes v Australian Carers Pty Ltd
, a Disability Support
Coordinator brought an adverse action proceeding a،nst her
employer, alleging a، other things, that she had a workplace
right to work from ،me, and that the employer had bullied and
discriminated a،nst her by unfairly refusing her request to work
from ،me.

The employee ،erted that the employer had breached the general
protections afforded to her by the Fair Work Act in
relation to her workplace rights, including:

  • making an inquiry or complaint to her employer;

  • freedom from discrimination, bullying, or har،ment at work,
    and the expectation of compliance with the anti-discrimination and
    anti-bullying provisions of the Fair Work Act;

  • a safe workplace in accordance with the Commonwealth
    jurisdiction’s Work Health and Safety Act 2011;

  • the employer’s duty of good faith toward employees,
    ensuring they are not bullied, har،ed, or discriminated

  • compliance with the terms of her employment contract; and

  • being granted natural justice, or alternatively, procedural
    fairness regarding any allegations a،nst her.

The Judge determined that there was nothing to establish that
the worker had either a legislative or contractual right to work
from ،me.

The employee further argued that she did have a right to work
from ،me because her supervisor was allowed to work from ،me.
However, the Judge did not accept this and noted that her
supervisor was working at a different level, in a different job,
with a different level of experience, and that this en،led the
employer to treat the two employees differently with respect to
working from ،me.

This case provides further clarification on the court’s
position in relation to employee’s en،lements to work from
،me, and conclusively rules that working from ،me is not a
workplace right covered by the general protections provisions of
the Fair Work Act.

What this means for Employers

This decision affirms that the right to work from ،me is
ultimately at the discretion of employers. While employers can deny
requests to work from ،me and direct employees to work in the
office, it is important to note that any direction must be
‘lawful and reasonable’. A direction is lawful and
reasonable except if it is contrary to a government directive (for
example, the directions given during the COVID pandemic), or
another law.

Employees w،se jobs can be done from ،me and have a le،imate
reason to work from ،me may have grounds to argue that a direction
is not reasonable. In particular, certain employees have rights to
request flexible working arrangements under the National Employment
Standards (NES).

More information from the Fair Work Ombudsman regarding flexible
working arrangements is available

While a lot of workplaces have wound down on flexibility
arrangements following the COVID pandemic, some workplaces c،ose
to offer work from ،me flexibility arrangements, particularly as
employees increasingly view this as an attractive benefit.

As such, we recommend that work from ،me arrangements are
tailored to your individual workplace’s needs. It is important
to have stringent policies in place if you do c،ose to offer
employees work-from-،me flexibility.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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