What to do when your return to work plan isn’t working…
As Australian businesses, including those in New South Wales (NSW), transition back to office-based work, some employers are encountering resistance from employees who prefer to continue working remotely. If an employee refuses to return to the office despite being directed to do so, what steps can an employer take?
Scenario: The Employee Refuses to Return
Imagine a scenario where Mark, a marketing manager, has been working remotely for over a year. His employer, based in Melbourne, has now requested that all employees return to the office three days a week. However, Mark refuses, citing his preference for remote work and the productivity he has maintained during this period. He insists that his arrangement is better for his work-life balance and does not see a need to return.
Understanding the Legal and Contractual Grounds
In dealing with Mark’s refusal, the employer must first ensure that the direction to return to the work is both reasonable and lawful.
- Reasonable Direction: The employer’s request is likely reasonable if the nature of Mark’s work requires in-person collaboration, which can’t be effectively achieved remotely. The reasonableness of the direction also depends on the employer’s operational needs and whether they have made accommodations for a phased return or hybrid work model.
- Lawful Direction: The employer’s direction is lawful if it aligns with Mark’s employment contract, which likely specifies the Melbourne office as his primary place of work. The Fair Work Act 2009 supports lawful directions provided they are within the scope of the employment agreement and comply with workplace laws.
Steps Employers Can Take if an Employee Refuses to Return
- Initiate a Discussion: The first step is to have an open and constructive conversation with the employee. Understand their reasons for refusing to return and see if there are any personal circumstances or concerns that need addressing.
- Assess Flexibility: Consider whether a compromise can be reached, such as a hybrid work arrangement where the employee can work from home part-time. This might be a reasonable solution that meets both the employee’s and the employer’s needs.
- Review the Employment Contract: Revisit the employee’s contract to confirm the work location stipulations. If the contract specifies the office as the primary work location, remind the employee of this obligation.
- Issue a Formal Direction: If discussions do not lead to an agreement, the employer may issue a formal direction to return to work. This should be done in writing, clearly stating the reasons for the requirement and the consequences of non-compliance.
- Consider Disciplinary Action: If the employee continues to refuse without a valid reason, the employer may need to consider disciplinary action. This could range from a warning to more serious measures, such as termination of employment, depending on the situation and the company’s policies.
- Seek Legal Advice: If the situation escalates, it may be wise to seek legal advice to ensure that any actions taken are compliant with employment law and do not expose the employer to potential claims of unfair dismissal or discrimination.
Conclusion
When an employee refuses to return to the work as directed, employers must navigate the situation carefully, ensuring that their actions are both reasonable and lawful. By initiating open communication, considering flexible arrangements, and following a structured approach, employers can address the refusal while maintaining compliance with legal obligations.