Ask an employment lawyer: 3 things you need to know about managing WFH arrangements

Ask an Employment Lawyer is a FREE series by Recruitment Marketing Magazine with Jonathan Mamaril, Director for NB Lawyers – Lawyers for Employers. If you’re a talent leader or HR professional subscribed to RMM, ask any talent engagement, employment law or workplace-related question and have it answered in this series. 

Thank you to readers who submitted their questions. In this instalment, Jonathan provides his answers to your work-from-home and talent management questions. 

COVID-19, lockdown, face masks, illness, border closures and work from home (WFH), remote working.  These words seem to go hand in hand in our current workplaces.  Some states and territories are still feeling the effects of the pandemic while other workplaces are starting to look towards getting people back to the office (or already have).

Work-from-home (WFH) arrangements have been forced upon many organisations, testing the flexibility of our workplaces to accommodate these needs while retaining high productivity. Many HR professionals, Managers, Directors and employers are grappling with a prime issue: What are our powers and responsibilities when it comes to WFH arrangements? 

Here are three things you need to know. 

1. Health and safety responsibilities still lie with employers

Of concern for many is the issue of responsibility if an employee injures or becomes ill while working from home. This has manifested in a number of ways and here is a snapshot of the type of matters which have arisen and we have dealt with recently:

• An employee injured their foot while “walking around” their home office
• An employee who made a complaint to their employer that they felt more “stressed” working from home because they couldn’t “switch off”
• An employee who felt “pressure” while working from home from her husband and kids and developed mental health issues such as anxiety
• An employee who complained of back problems due to using a chair in their home office (not supplied by the company).

The basic fundamental health and safety obligations will still apply and that is an employer must do what is reasonably practicable to ensure the health and safety of an employee. There are also obligations on the employee as well to ensure their own health and safety.  Whether the employee is injured at the office or working from home – for health and safety purposes the obligations will still lie with the employer.

Read more: Ask an employment lawyer Q&A: Leave entitlements, JobMaker, WFH setups and more

There is of course merit to discussions around whether the employee was engaged in work hours or in the conduct of work. There are several cases which point to a distinction.  To mitigate this risk a number of steps can be taken:

1. Undertake a health and safety assessment, if it is not possible to do one in person, consider a self-assessment audit with undertakings by the employee that they are being honest with their assessment
2. Put in place a work-from-home policy – this should cover a number of issues but at a basic level, reminding them of their health and safety obligations, the procedure to request work from home, approval requirements for equipment and company property to be supplied
3. Consider providing standard company property if it is an inherent requirement of the position – chairs and computers are a good example and potentially even tables, cameras and basic stationery
4. Training – consider undertaking appropriate WFH training for managers and also for employees WFH this will ensure expectations and standards are known. If this is backed by the above policy even better

2. WFH arrangements – can they be refused?

Requests to WFH will fall under flexible work arrangements, flexible work arrangements are underpinned by the National Employment Standards.

Although there are some differences between award free employees and award (and enterprise agreement) covered employees there is a general requirement to:

• Discuss any request with the employee regarding the request
• Take into consideration:
  • Needs of the employee
  • Effect for the employee if arrangements were made
  • Reasonable business grounds to refuse.

The key part for employers and HR is the term “reasonable business grounds”. The criteria set focuses on the following key factors:

1. Cost (high cost)
2. The effect on other employees’ arrangements
3. new employees will be required to accommodate the arrangements
4. there would be a significant loss of productivity or/and negative impact on client/customer service

To be frank, whatever business grounds put forward employers and HR need to ensure that those arguments would satisfy a Commissioner in the Fair Work Commission. That is to say, whatever you put in writing (and you have 21 days to respond) a Commissioner will look kindly on the arguments put forward.  You will need to consider all of the above to have a chance at a refusal being supported by the Fair Work Commission if it is challenged by an employee (and their representatives).

Consider the case of Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria [2019] FWCFB 305 wherein the Victoria Police were unable to refuse a detective’s request for flexible working arrangements.  This is even with the following arguments:

1. the arrangement would Impose an unreasonable financial burdenas they would need to pay the detective his full salary plus overtime allowances
2. a significant increase to the risk of fatigue-related OH&Sincidents as the shifts would be longer
3. A negative impact to productivity and parity to the colleagues of the detective

Although there were some other issues that hindered the Victoria Police in this matter the arguments would seem to be (on the face of it) wholly justified on reasonable business grounds. The Fair Work Commission found this was not the case.

Taking this case into consideration you will need to go further than the Victoria Police to justify a refusal.

3. Termination of employment (and discipline) must follow a procedure

If you have not got a proven procedure for dealing with dismissal this is the time to put one in place and ensure you are getting legal advice (to claim privilege) every step of the way.  We have provided details around this in previous articles such as Defending An Unfair Dismissal Claim – HR Need To Consider 3 Main Issues and The Pink Folder – Senior Employees And Their Duties Of Trust And Confidence (3 Tips For Employers) and General Protections Complaint – Huge Future Economic Loss $Pay-Out Due To COVID-19.

Here are some further considerations to keep in mind:

• If an allegation of misconduct has been brought up such as timesheet fraud, misuse of social media, misuse of leave or data theft has occurred – although it may be frustrating for all involved the allegation should be put to the employee preferably through a show-cause letter
• Why a show-cause letter – it gives the Employer an opportunity to consider any response by the employee there may well be even mitigating circumstances that should be considered.
• Performance management should be managed in the same way even with WFH – this might mean discussions over virtually instead of in-person but the same premise holds true
• Whatever is in writing and whatever has been said should all be assumed to be exposed and potentially read or considered by a Judge or a Commissioner – will this be looked upon favourably – if not? How will risk and liability be mitigated?

Do you have a question for Jonathan? Send it to editor@www.rmm.onenazmul.dev. Jonathan and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*. 

*This series may be limited. Legal advice is general in nature. For tailored legal advice specific to your organisation, industry and location, speak to your organisation’s legal advisor.  

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem.