Do I have to physically come into work? Can I get fired if I choose to work from home?

Posted on February 22, 2022
Gillian Miranzi

L v Australian Federal Police [2022] FWC 15

The Applicant was employed by the Australian Federal Police (AFP) and his duties involved updating social media content. In around 2017, the applicant was diagnosed with some health issues and pursuant to some medical advice, he had his station relocated to the AFP headquarters.

In March 2020, due to the COVID-19 lockdowns the applicant began working from home which was preferable to him due to his ill health. When lockdown was lifted and people could return to the office, the applicant continued to work from home without approval from AFP. 

By April 2021, the AFP had made numerous attempts, a total of 10, to the applicant to get him to come back into the office. This included calling him, emailing him, and writing him a letter that gave him an official direction to return to the office. Failure to adhere to the direction would result in disciplinary actions or even termination of employment. This was to no avail, the applicant continued to work from home and ignored his employer’s request.  

On 28 April 2021, AFP sent a final letter to the applicant stating that AFP was going to terminate his employment pursuant to section 28of the AFP Act, on the basis that he had continually failed to comply with the lawful direction which required him to physically attend the office. The applicant responded to the letter stating that he had a lawful right to work from home due to his disability. However, his employment was officially terminated on 25 May 2021.

It was decided that the applicant’s dismissal was valid and the AFP’s requests were not harsh, unjust or unreasonable.

What does this mean for you?

Legally, anyone can request flexibility in their work schedule including working from home if they have worked with the same employer for at least 12 months (excluding casuals). However, arrangements about working from home need to be discussed between the employee and the employer, as working from home arrangements are not always possible.

It is possible to be dismissed for working from home without your employer’s consent. Under section 394 of the Fair Work Act, a person who thinks they have been unfairly dismissed can apply to the Fair Work Commission (FWC). Under section 387, the FWC will take into consideration whether there was a valid reason for the dismissal related to the person’s capacity or conduct and whether that person was notified of that reason.

Concluding remarks

If you request to work from home and your employer refuses, even if you are achieving the same amount of work and productivity at home, you can be given formal written warning and if this is ignored, a notice of termination.

The employer must provide a written response within 21 days of your request to work from home. They have to consider the needs of the employee, consequences for the employee if changes in working arrangements are not made and any reasonable business grounds for refusing the employee’s request.