Can your staff refuse to return to work?

by Erin Kidd08 Jun 2020

At the beginning of May, Prime Minister Scott Morrison announced Australia’s ‘3 Step Framework for a COVIDSafe Australia’.

As businesses move towards recommencing their normal operations in accordance with the framework, employers will be asking their employees to return to the workplace.

In some cases, a business cannot operate without its employees being physically present at the premises: a restaurant cannot serve meals without wait staff, just as a shop cannot sell goods without shop assistants. But in office environments where face-to-face contact with others isn’t critical, the timing of a return to the workplace may not be so clear-cut. To survive during the pandemic, businesses have had to move to models that allow work to be performed remotely and with increased flexibility – and some employees may want it to stay that way.

Being able to throw a load of washing on while waiting for the kettle to boil, saving hours on the commute and still hitting work targets has been seen by some as a new and better way to work.

Following positive feedback from employees and a realisation that fewer bodies in the office may save on commercial rent, cleaning, heating/cooling and other incidental office costs, some employers have already determined that a number of their employees will make working from home a new norm.

Before an employer directs its employees to return to the workplace, it must ensure that a ‘COVIDSafe plan’ has been developed, taking into account the public health orders in place at the time to avoid breaching restrictions. At present, this would require any COVIDSafe plan to include measures for physical distancing and, in some workplaces, the four-square-metre rule.

As a result, the employer may need to relocate desks to facilitate 1.5m distancing  between employees, or, where an office cannot be easily rearranged, have teams of employees attend the workplace in shifts so fewer staff are present at any one time.

Employers must also ensure they provide a safe working environment to comply with work health and safety laws. COVIDSafe plans must cover systems and processes for maintaining effective hygiene, monitoring the health of employees and visitors to the workplace, and ensuring satisfactory cleaning.

Being able to throw a load of washing on while ... saving hours on the commute and still hitting work targets has been seen by some as a new and better way to work

Some organisations have already flagged that certain members of their workforces will continue to work from home following the end of the pandemic. They have realised that reducing the number of employees at their premises may result in bottom-line savings on workplace costs when weighed against the costs of facilitating work from home, such as ongoing costs for more sophisticated IT systems.

But what if an employee refuses to return to the workplace once they have been told, “It’s time”?

Employers will need to carefully consider the circumstances of any such refusal. Where a proper COVIDSafe plan has been developed and any employee can safely travel to and from work without a great deal of disruption, it largely becomes a matter of employer discretion as to whether the employee can continue to work from home.

Relevant matters to consider include the employee’s level of productivity at home versus in the workplace, whether they need to be in the office to supervise others or need to be supervised themselves, and whether the employee has to interact with co-workers and clients face-to-face.

Ultimately, if the employer wants the employee back in the workplace, they can direct the employee to return. Any refusal to follow a reasonable directive could have disciplinary consequences.

Employers should consider whether the way their employees travel to work will  be affected by COVID-19 restrictions. For example, while public transport services are affected by social distancing, it may be impractical for employees to return to the workplace.

Those employees with disabilities or carer responsibilities will also require additional consideration by the employer if they cannot legitimately return to the workplace due to matters related to COVID-19, or in circumstances where they submit a formal request for flexible working arrangements under the Fair Work Act. Hasty decisions by an employer with respect to those employees may give rise to a breach of employment and discrimination laws, so care must be taken and obtaining legal advice is often a good idea.

At the end of the day, the health and safety of employees is paramount. However, if it is safe for employees to return to the workplace, the employer can decide for itself whether to allow an employee to continue to work from home, both as we emerge from lockdown and into the future.

Erin Kidd, Special counsel, Employment Law Group, McCabe CurwoodErin Kidd
Special counsel, Employment Law Group,
McCabe Curwood