02 Mar Back to the Workplace – Part 2
Can I direct an employee back to the office following a COVID-19 work at home arrangement?
Our previous article discussed some strategies to pave the way for a smooth transition from working at home to returning to work in the regular place of work. Most employees will be cooperative about returning to work, but what do you do when facing an employee who refuses to return to their regular workplace?
Step 1: Meet your WHS requirements
The Fair Work Commission states that “an employee cannot refuse an employer’s direction to perform work if the direction is reasonable and in line with their employer’s legal obligations”.
In this regard, it is imperative that employers ensure they meet all workplace health and safety obligations required during COVID-19. As we also mentioned in our last article, your business’s COVID Safe Plan, which is underpinned by a detailed risk assessment for your workplace, is the place to start and consultation with employees is a must.
Be mindful that there may be an exceptional circumstance where an employee with a genuine and reasonable concern for their health and safety may lawfully refuse to return to the workplace. This may arise if an employee has a pre-existing health issue, such as being immunocompromised. If this circumstance occurs, you have a duty to consult with the employee and implement reasonable accommodation and adjustment. Simply staying at home as a precaution or refusing to work with an unvaccinated employee is not likely grounds for refusing to attend the workplace.
Step 2: Commence a performance management process.
With WHS obligations satisfied, if your employee still refuses to return to the workplace, you can commence a performance management process starting with an invitation to attend a meeting to address their refusal to comply with a lawful and reasonable direction. If your employee fails to respond satisfactorily, disciplinary action may be taken by following a procedurally fair process. When dismissing an employee, the decision should be based on the “harsh, unjust or unreasonable principles” applied by the Fair Work Commission in determining whether dismissal is fair in the circumstances.
Further information on WHS and COVID-19 employer obligations is available from SafeWork Australia at: https://covid19.swa.gov.au/covid-19-information-workplaces. You can also contact Business 360 on firstname.lastname@example.org or 1300 287 360 to discuss the specifics of your situation and business needs with one of our consultants.