Many office-based employees have been working from home due to COVID-19 restrictions. This has posed obvious logistical and operational challenges for many employers. For example, were employees permitted to take their desktop, keyboard and mouse offsite because they had no need for them in the office?
Further challenges arise as we move towards COVID-Normal. If employees are working interchangeably from the office and home – either due to density restrictions or due to flexible work – employees are likely to need two set ups – one for the office and one for their home. Many employers are navigating what they can or should do in these circumstances.
Some of these issues were considered in the recent Fair Work Commission decision of Jayson McKean v Red Energy Pty Ltd. In that case, the employee alleged that he was forced to resign from his position as a customer service assistant after his employer refused to pay for him to purchase a home desk.
The Melbourne-based employee had continued to work from the office during the initial COVID-restrictions in March and April, despite employer encouragement that he work from home. The employee had resisted working from home because he did not have suitable furniture in his house to facilitate his administrative role and could not afford to buy furniture.
The company required the employee to work from home after the reintroduction of Stage 3 restrictions in Melbourne in July 2020. Subsequently, the employee requested that his employer purchase a desk for him to use at home. Red Energy rejected this claim and cited other support it had given to its employees to facilitate working from home.
The employee continued to work from the office. The employee then made a request for six weeks’ leave after his employer made it clear that working from the office could not continue. The employer requested the leave request for operational reasons. The employee then sent his employer the following email:
I wish to advise that I am resigning from Red Energy effective immediately. I will leave my computer and headset in my old locker, which I will keep locked and surrender my security pass to the front reception staff.
Red Energy accepted the employee’s resignation.
The employee made an unfair dismissal application alleging that he was constructively dismissed. The employee sought reinstatement, which was opposed by the company.
At hearing, the employee submitted that he had no reasonable choice but to resign because of his employer’s failure to pay for a desk or otherwise consider his personal circumstances.
Deputy President Colman rejected the employee’s submissions, which he described as ‘entirely without merit’. The Deputy President held that having to spend a small sum of money on a desk what was not a matter that forced the employee to resign. The Deputy President observed that the employee’s letter of resignation did not refer to him being compelled to resign because no such compulsion existed. There were a range of other options available to the employee. For example, the employee could have sought to borrow a desk from a friend or asked for a shorter period of leave. However, the employee did not avail himself of these opportunities.
Consequently, the Commission dismissed the employee’s unfair dismissal application because he was not placed in a position where he had no reasonable choice but to resign.
No doubt these some of these issues – which involve overlapping concerns around work health and safety, asset management, employer obligations, satisfied employees and IT considerations will be front of mind for many businesses.
To discuss further or for more information please contact:
Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au
Katherine Dennis
Special Counsel
M +61 407 013 010 | T +61 3 9611 0151
E: kdennis@sladen.com.au
