Workplace commission rejects an employee’s bid to work remotely from interstate

A workplace tribunal has found a Queensland employer’s decision to reject a worker’s request to work remotely was “fair and reasonable” in a case that could foreshadow an end to the widespread shift towards working from home.

A human resources advisor lodged an appeal against a decision by her employer Queensland Health in the Queensland Industrial Relations Commission, after her request to relocate and work remotely from Sydney was rejected. The HR advisor wanted to move interstate because her husband, who works in the army, had been temporarily posted in Sydney.

The HR advisor, who works at West Moreton Hinterland Hospital, first requested flexible working arrangements in September but her request was denied in October in an email from her manager that outlined the reasons behind the decision.

The manager acknowledged the worker had been performing her duties from home throughout the pandemic, but said it was a temporary arrangement put in place due to health risks. She also said there were some elements of her role that “would be very difficult to do remotely”, such as attending interview panels and providing in-person coaching to clients.

Sam Pidgeon, Industrial Commissioner at Queensland Industrial Relations Commission, rejected the worker’s bid to overturn her manager’s decision. Pidgeon said she was “satisfied” with the manager’s decision, which explained “reasonable grounds for refusing the application”.

“The decision took into account the way that work had been undertaken over the past 18 months, the emerging needs of the employer and the practicalities of the proposed arrangement,” she said.

“No inherent right to work remotely”

Olivia Hitchens, lawyer and director at Hitch Advisory, says the case “was an important case to have” that’s helpful to other employers looking to bring people back to the office.

“It was unusual because she was looking to move interstate, so there’s that nuance, but it is a step towards employers being able to say ‘we do actually need you in the office for some face to face work’,” Hitchens tells SmartCompany.

Hitchens says the Commission decided in favour of Queensland Health because it gave reasons for its decision when responding to the worker’s request for flexible working arrangements.

“Its policy was relied on heavily by the judge. So it shows employers should put a policy in place, consult and give reasons to their decisions,” she says.

For Andrew Jewell, principal at Jewell Hancock Employment Lawyers, the decision highlights the tension between employers and workers who have different expectations about remote work.

“But at the end of the day, there is no inherent right to work from home or away from the office,” Jewell tells SmartCompany.

Jewell expects more cases to eventuate in the new year as employers make a more concerted effort to bring workers back to the office. He says the Fair Work Commission could hear a wave of unfair dismissal cases, involving a worker appealing the decision of their employers to stand them down after refusing to let them work remotely.