Recently, the Fair Work Commission dismissed an Unfair Dismissal application (see McKean v Red Energy Pty Ltd  FWC 5688) lodged on the basis an employee was ‘forced’ to resign his employment because his Employer would not provide him with a desk during the COVID-19 Victorian lockdown.
The applicant’s position was that he had recently moved home and supposedly did not have furniture (including a desk or a table) and did not have enough money, due to medical expenses, to pay for a desk or table which meant he could not safely work from home. Given the ever-expanding pandemic, an initial request by the company was made in March 2020 to all staff to encourage them to work from home. The applicant was allowed, due to not having a desk, to work from the office but the applicant was informed on multiple occasions that he should find or buy his own desk as the Employer would not provide one. When the issue of working from home was raised again in both May and June 2020 the applicant continued to require his Employer buy him a desk or he could not work from home. Each request for a desk or reimbursement for same was refused.
On 7 July 2020 the Victorian government announced the reintroduction of stage 3 restrictions which mandated employees work from home unless there was an urgent need to attend the office. That day the Employer’s CEO sent an email to all employees stating the same requirement. The next day the applicant’s supervisor directed him to work from home. Later that day the applicant’s union became involved and while the Employer had offered to provide ergonomic support for working at home by way of an ergonomic chair, ergonomic assessment, laptop, headset, access to an occupational therapist and online resources that was supposedly not sufficient and the Employer should buy the applicant a desk if they required him to work from home. This request was again refused.
The applicant then defied the Employer’s reasonable and lawful directions and continued working in the office until 17 July 2020 at which time the applicant was again directed by his supervisor to work from home which caused the applicant to immediately apply for 6 weeks’ leave starting the next work day. This application for leave was not able to be accommodated by the Employer and was refused. After having his request for 6 weeks leave refused the applicant resigned his employment but did not specify any reason for doing so.
The Unfair Dismissal Application
The applicant stated in his FWC application his resignation was not by his own doing but rather due to a ‘constructive dismissal’ whereby he had no choice but to resign as he could not work from home because of the Employer’s ongoing failure/refusal to provide a safe working environment – namely a desk and that in essence he was ‘ejected’ from the office with no safe place to work.
The Employer’s arguments were that he was neither dismissed (a jurisdictional objection) nor was it reasonable or fair to force employers to buy desks for its employees for home use.
The Commissioner sided with the Employer and confirmed the applicant had ample opportunities to hire, buy or borrow a desk and could have done so instead of resigning – and at the time of the hearing had bought a table. Further the Commissioner determined that having to pay a small sum to buy a desk/table was not a matter that ‘forced’ the applicant to resign. The Commissioner determined the Employer’s refusal to buy a desk was neither an occupational health and safety risk, let alone a contravention of s.21 or any other provision of the Occupational Health and Safety Act 2004 (Vic) nor was the Employer’s provision of ergonomic provisions a failure to provide ‘adequate resources’.
Lastly the Commissioner noted the Employer could have easily terminated the applicant for his refusal to comply with lawful directions, and had an Unfair Dismissal application been made in that respect, the applicant’s termination would not have been found to be harsh, unjust or unreasonable.
Irrespective of location, organisations have a legal obligation to ensure the health and safety of workers.
The way businesses minimise risks at a worker’s home office can be drastically different from how they would in the workplace so reviewing any related policies, procedures and the like is imperative. Under OHS laws, organisations should:
- Provide staff with guidance on how to make their home office safe;
- Allow, if feasible, employees to temporarily borrow any necessary work station equipment from the office;
- Require workers to become aware of good ergonomic practices and, respectively, check in with them to ensure they’re in compliance with expectations;
- Regularly communicate with employees;
- Make information and support for mental health and wellbeing services readily available to staff;
- Provide employees with a clear point-of-contact in the business that they can reach out to regarding any concerns related to working from home;
- Support staff in ‘self-checking’ their at home work environment is safe and free from hazards by providing a working from home self-assessment checklist and other general resources.
Should your business be confronted with an Unfair Dismissal application or any other Fair Work Commission applications there are very short timeframes in which a response is required to be made so do not delay in seeking specialist legal advice.
Lastly, to prevent similar claims arising, our Employment Law Team can provide your business with a Fixed-Fee complete Human Resources policy review and/or overhaul to ensure your business has up-to-date and compliant policies and procedures.
Call our Employment Law Team on (07) 3211 2233 to help guide your business in the right direction.