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In one of the first cases to consider return to work directions, the Fair Work Commission has found that an employee was unfairly dismissed after working from home when they should have been working from the office.

Tomaso Edwards Moro v Insider AU Pty Ltd

In this case, Mr Moro was employed as a sales representative by Insider AU, being an e-commerce support firm.

Insider AU mandated employees to work two days in the office per week, which Mr Moro had previously failed to adhere to. As a result, his non-attendance in the office was raised informally.

On 30 August 2023, Mr Moro failed to attend the office on his mandated office day. His excuse was that he had a tradesperson attending his home to fix his dishwasher and that his calendar had been updated to reflect him working from home. This excuse was not accepted by Insider AU, who terminated Mr Moro the following day after calling for his resignation which was not provided.

Is a failure to attend the office a fireable offence?

The Fair Work Commission held that a failure to attend the office was not a valid reason for termination. Whilst the employer had raised this issue on an earlier occasion, it was relevant that:

  1. The issue of not attending the office was only raised informally;
  2. No formal warnings had been given;
  3. Whilst Mr Moro had not specifically communicated his non-attendance to his employer, he did update his calendar and provide reasons for his absence;
  4. The failure to attend the office was provided as the reason for dismissal in a convoluted way.

Harsh, Unjust or Unreasonable

Section 387 of the Fair Work Act 2009 (Cth) requires the Fair Work Commission to consider whether the termination was harsh, unjust or unreasonable. This requires an assessment of the procedural fairness of the termination.

The Commission found that the termination was harsh, unjust or unreasonable because:

  1. Mr Moro was not given the opportunity to respond to the reason for his dismissal. Rather, the decision had already been made prior to the phone call with his manager and it was the only outcome which would come from that conversation;
  2. The employer alleged that the reason for dismissal was poor work performance. However, this was at odds with there being no warnings provided as to performance and Mr Moro’s evidence that he excelled at work;
  3. Mr Moro was not allowed a support person present during his termination;
  4. Insider AU only has 16 employees but is part of a large group of companies who had the resources (including in-house legal counsel and HR) to deal with employees and termination;
  5. Mr Moro was not correctly paid his notice period.

As a result, Mr Moro was awarded 12 weeks’ pay in compensation.

Lessons for Employers

This case shouldn’t deter employers from requiring their employees to work in the office. In our view, it’s likely that the Fair Work Commission could come to the finding that a failure to attend the office is a fireable offence if:

  1. Employment contracts mandate when to work from the office;
  2. Employers put in place policies to work remote, which include spelling out that a failure to attend the office could result in being a fireable offence;
  3. Providing a number of formal warnings before dismissing an employee.

It’s also a timely reminder for employers to ensure that they provide employees with procedural fairness during the termination process. This includes giving them an opportunity to respond, clearly conveying the behaviour which is not acceptable and providing an opportunity to improve, explaining the potential consequences of their behaviour and allowing a support person present.

If you need assistance with getting employees to attend the office, contact one of our experienced employment lawyers on (03) 9481 2000 or info@tauruslawyers.com.au.

Posted by Taurus Legal Management