Employees previously worked from home exclusively because of public health orders that prevented them from attending the office due to COVID-19. Following the lifting of restrictions, some businesses have returned to the physical office while others have adopted a hybrid work arrangement. The decision in Jason Lubiejewski v Australian Federal Police [2022] FWC 15 confirms that directing an employee to return to the office can be a lawful and reasonable direction.

Background

Jason Lubiejewski (Mr Lubiejewski) was employed by the Australian Federal Police (AFP) in or around 2010. Mr Lubiejewski’s duties involved publishing new and updated content to the AFP social media channels.

In or around 2017, Mr Lubiejewski’s workstation was moved from Corporation Communications to the Technology and Innovation area pursuant to medical advice from Mr Lubiejewski’s treating practitioner. Mr Lubiejewski was said to have been suffering from anxiety and depression.

In March 2020, Mr Lubiejewski requested the AFP provide him with alternative seating away from the Technology and Innovation area. Mr Lubiejewski provided a letter from his psychologist that recommended he sit ‘further from people, in a corner, facing a window, where a minimum of people need to (or can) walk past’. The psychologist also recommended to consider allowing Mr Lubiejewski to work from home if this seating was not possible.

Mr Lubiejewski worked from home due to the COVID pandemic until August 2020 when he commenced a period of personal leave. Mr Lubiejewski returned to work in January 2021. During this time, Mr Lubiejewski and the AFP exchanged a series of emails around Mr Lubiejewski’s return to the office, including organising a suitable external workplace rehabilitation provider.

Between January 2021 to March 2021, the AFP made approximately eight attempts to facilitate Mr Lubiejewski’s return to work, which included:

• offering him the opportunity to return to the office on a graduated basis;

• contacting him to discuss any reasonable adjustments which might be required; and

• requesting him to provide relevant and updated medical evidence from his treating practitioners.

Mr Lubiejewski did not respond to these requests and refused to participate in any discussions regarding his capacity and daily tasks. The AFP subsequently directed Mr Lubiejewski to return to the office on 15 March 2021. Mr Lubiejewski refused to comply with this direction and continued to work from home.

Mr Lubiejewski was then issued with a formal direction on 29 March 2021 to, amongst other things, attend the workplace three days per week. The AFP subsequently terminated Mr Lubiejewski’s employment in May 2021 after Mr Lubiejewski continually failed to comply with a lawful and reasonable direction given by the AFP to return to the office.

Finding

Deputy President Dean of the Fair Work Commission (FWC) found that Mr Lubiejewski’s refusal to attend the workplace amounted to a refusal to comply with the AFP’s lawful and reasonable direction and was a valid reason for his dismissal. The FWC found that the directions given to Mr Lubiejewski were both reasonable and lawful. Relevantly, the FWC said that it was reasonable for the AFP to:

• discuss with Mr Lubiejewski what reasonable adjustments may be required for him to perform his role safely; and

• request Mr Lubiejewski provide relevant and updated medical evidence to the AFP.

The FWC held Mr Lubiejewski’s refusal to do either of those things was unreasonable, as both a discussion with him and the provision of updated medical evidence was necessary for the AFP to make a proper assessment as to what support or accommodation was needed to be provided to Mr Lubiejewski.

The FWC accepted that the AFP had legitimate reasons for requiring Mr Lubiejewski to return to the office, such as:

• the AFP wanted to integrate Mr Lubiejewski back into work;

• Mr Lubiejewski will be required to receive training on new systems used by the team;

• Mr Lubiejewski will be required attend team meetings and other meetings;

• Mr Lubiejewski will better understand the team and organisational priorities and receive the support he needed to perform his role;

• there were several unsuccessful attempts made to discuss his capacity for work and help him to get a workplace rehabilitation provider; and

• the AFP had requested current medical evidence about the duties Mr Lubiejewski could perform so that reasonable adjustments could be made.

Key Lessons

• An employee has an obligation to comply with a lawful and reasonable direction given by their employer.

• Employees do not have an exclusive right to work from home (unless this has been agreed between the employer and the employee).

• If a business requires their employees to return to the office (whether exclusively or on a hybrid basis), employers should provide a clear direction to employees to return to the office.

• If an employee refuses to return to the workplace, the employer should actively engage with the employee as to the reasons for this refusal and give them the opportunity to provide supporting evidence before any decision is made to terminate their employment.

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
Principal Lawyer
M +61 407 013 010 | T +61 3 9611 0151
E: kdennis@sladen.com.au