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Norman Waterhouse

Lawful but not reasonable direction for an employee to return to the office

While a direction issued to an employee to return to the office would generally be a lawful one, it may not always be reasonable.

In Ruth Cully v Commonwealth of Australia [2022] FWC 495, the Fair Work Commission (FWC) found that Ms Cully, a veteran Auditor at the Australian National Audit Office (ANAO) was unfairly dismissed when she failed to comply with directions to return to the office due to her ‘increased risk’ from COVID-19 and the ill health of her uncle for whom she cared.

Facts

In March 2020, Ms Cully applied to be permitted to work from home as she had a medical certificate indicating she was at greater risk of complications from COVID-19. Most ANAO staff started working from home shortly afterwards, however, ANAO policy stated that staff wishing to work remotely from interstate were required to seek approval to do so. Ms Cully sought approval to work from her family home in Woolgoolga, approximately 850 km away from ANAO’s offices in Canberra, to care for a terminally ill uncle, Mr Cully. Her request was approved until 31 December 2020 with numerous conditions, including that the arrangement would be reviewed monthly to ensure it remained appropriate.

Ms Cully made an application for a period of personal (carer’s) leave from 14 September 2020 to 23 September 2020 to care for her sick uncle. The application was rejected on the grounds that her uncle is not a household member for the purposes of the Fair Work Act 2009 (Cth) (FW Act) as her ‘household’ was in Canberra, not in Woolgoolga. Having exhausted her other leave entitlements, Ms Cully then sought to take leave without pay for that period, but this too was rejected as she had already taken a significant period of leave recently and she was required to assist with an important audit. Ms Cully then submitted an application for personal leave for the period 14 September 2020 to 23 September 2020 and provided a medical certificate stating that she was unfit for duty, due to the stress she was facing from her personal circumstances and the ANAO’s refusal to grant her leave.

Around the same time, Ms Cully’s working from home arrangements were also revoked as the ANAO claimed that her ongoing absence from work was making it difficult for her to complete her work to an appropriate standard.

Ms Cully was directed to return to the office on 6 October 2020 (First Direction). After taking further personal leave, leave without pay and annual leave, she returned to the office on 26 October 2020.

In November 2020, Mr Cully’s condition deteriorated significantly and Ms Cully twice requested leave to care for him. These requests were again rejected on the basis that Mr Cully was not a household member under the FW Act. Ms Cully did not attend work on 18 November 2020. On 19 November 2020, the ANAO issued Ms Cully with a direction to return to the Canberra office by or on 23 November 2020. She did not comply with the direction and remained away from the office on unauthorised unpaid absence until 1 January 2021. Ms Cully obtained a medical certificate to cover her absence from 1 January 2021 to 28 February 2021, which was approved by ANAO, but she was then directed to return to the office on 1 March 2021 (Second Direction). Ms Cully again failed to do so and indicated she was willing to work from home from that date instead. She asked for work to be allocated to her, but ANAO responded that her work had to be completed from the office. On 9 March 2021, she received a notice of intention to terminate her employment (Show Cause Notice) due to non-performance of duties.

Ms Cully returned to the office on 17 March 2021. On 7 April 2021, while Ms Cully was in Canberra, Mr Cully passed away. She again took time off to attend to funeral arrangements and returned to the office on 21 April 2021.

On 19 May 2021, Ms Cully was sanctioned with a reprimand and a demotion for her failure to comply with the First Direction. On 2 June 2021, her employment was terminated on the basis set out in the Show Cause Notice. Ms Cully then made an unfair dismissal application in the FWC.

Decision

The issue in dispute between the parties was whether there was a valid reason for her termination.

Ms Cully submitted that there was no valid reason for termination because she had been performing her duties from the office for more than six weeks at the time of her termination. She submitted that she was a carer as defined in the FW Act who was entitled to take carer’s leave. She had medical evidence, for both herself and her uncle, to support her absence from the office. For the periods she sought to work from home, Ms Cully felt that ANAO had unreasonably refused to allocate her work.

ANAO contended that Ms Cully failed to perform her duties, in defiance of lawful and reasonable directions to return to the office. The Directions were lawful because section 25 of the Public Service Act 1999 (Cth) permits ANAO to determine where employees can perform their duties. ANAO also alleged that the Directions were reasonable because the Canberra office was a safe location for Ms Cully to work, and she had a history of not engaging with ANAO regarding her absence from work and purported performance issues.

The FWC found that while the direction was lawful for the reason submitted by ANAO, it was not reasonable. The FWC found that Mr Cully was a household member for the purposes of the FW Act for whom Ms Cully was entitled to care, as she lived with Mr Cully at the relevant time and had done so since 2016, either in Canberra or in Woolgoolga. She also provided medical certificates confirming that she was responsible for his care. In these circumstances, Ms Cully was entitled to make a request for flexible working arrangements which can only be declined on reasonable business grounds. The FWC found that ANAO did not have reasonable business grounds to revoke the flexible working arrangement previously approved to December 2020, as the purported performance issues were never formally raised with her, and most other ANAO staff were not required to return to the office until March 2021.

As the Directions were not reasonable, ANAO had no valid reason to terminate Ms Cully’s employment. ANAO was ordered to reinstate Ms Cully to her position.

Take Home Message

As many workplaces transition back to working full time from the office, this case is a valuable reminder that certain employees may face unique circumstances which entitle them to flexible working arrangements. While the facts of this case are quite unique, employers must be aware that directions to return to the office cannot be applied inflexibly to all staff. Whether a direction to return to the office is reasonable will vary on a case-by-case basis, but it is not appropriate for an employer to hold a ‘disregard’ for an employee’s personal circumstances, as the FWC found ANAO held towards Ms Cully. We recommend that employers seek advice in circumstances where they are unsure whether flexible working arrangements should or could be provided, and whether there exist reasonable business grounds to revoke or refuse requests.

If you wish to discuss any of the material contained in this article please contact Virginia Liu on + 61 8 8210 1279 or vliu@normans.com.au or Annabelle Narayan on + 61 8 8210 1292 or anarayan@normans.com.au.

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