COVID-19, lockdown, face masks, illness, border closures and work from home (WFH) and remote working. These words seem to go hand in hand in our current workplace in Australia. Some states and territories are still feeling the effects of the pandemic whilst other workplaces are starting to look towards getting people back to the office (or already have).
WFH is not a new concept but has been forced upon many organisations and tested the flexibility of workplaces to accommodate WFH needs and productivity. A number of HR professionals, Managers, Directors and Employers are grappling with a prime issue:
Of concern for many is the issue of responsibility if an employee injures or becomes ill whilst working from home. This has manifested in a number of ways and here is a snapshot of the type of matters which have arisen and we have dealt with recently:
The basic fundamental health and safety obligations will still apply and that is an employer must do what is reasonably practicable to ensure the health and safety of an employee. There are also obligations on the employee as well to ensure their own health and safety. Whether the employee is injured at the office or working from home – for health and safety purposes the obligations will still lie with the employer.
There is of course merit to discussions around whether the employee was engaged in work hours or in the conduct of work. There are several cases which point to a distinction. To mitigate this risk a number of steps can be taken:
Requests to WFH will fall under flexible work arrangements, flexible work arrangements are underpinned by the National Employment Standards.
Although there are some differences between award free employees and award (and enterprise agreement) covered employees there is a general requirement to:
The key part for employers and HR is the term “reasonable business grounds”. The criteria set focuses on the following key factors:
To be frank, whatever business grounds put forward Employers and HR need to ensure that those arguments would satisfy a Commissioner in the Fair Work Commission. That is to say, whatever you put in writing (and you have 21 days to respond) a Commissioner will look kindly on the arguments put forward. You will need to consider all of the above to have a chance at a refusal being supported by the Fair Work Commission if it is challenged by an employee (and their representatives).
Consider the case of Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria  FWCFB 305 wherein the Victoria Police were unable to refuse a detective’s request for flexible working arrangements. This is even with the following arguments:
Although there were some other issues that hindered the Victoria Police in this matter the arguments would seem to be (on the face of it) wholly justified on reasonable business grounds. The Fair Work Commission found this was not the case.
Taking this case into consideration you will need to go further than the Victoria Police to justify a refusal.
If you have not got a proven procedure for dealing with dismissal this is the time to put one in place and ensure you are getting legal advice (to claim privilege) every step of the way. We have provided details around this in previous articles such as Defending An Unfair Dismissal Claim – HR Need To Consider 3 Main Is... and The Pink Folder – Senior Employees And Their Duties Of Trust And Co... and General Protections Complaint – Huge Future Economic Loss $Pay-Out ....
Here are some further considerations to keep in mind:
NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation and can undertake a review and health check for your WFH arrangements. Reach out via firstname.lastname@example.org or +61 (07) 3876 5111 to book an appointment.
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law at NB Lawyers – Lawyers for Employers who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
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