‘Lawful and reasonable’: Why bosses can force you back to the office

Employment lawyers are warning workers that their bosses can compel them to show up at the office even in the face of surging coronavirus cases.

The widespread transmission of COVID-19 and influenza cases is leading to a huge spike in sick days being taken across the country, raising the possibility that staff may be sent back to home offices to stop the spread.

The number of Australians taking sick or personal leave is skyrocketing. Credit: Jason South

The idea of a pivot back to remote work has angered employer groups, while small businesses have told this masthead they have relaxed their policies to let staff spend more time at home.

Employment law experts told The Sydney Morning Herald and The Age that given there are no current government mandates to work from home, if a worker’s employer wants them in the office they don’t have much power to insist otherwise.

Most standard employment contracts will state or imply that workers must follow the requests of their employer provided they are lawful and reasonable.

Employment and industrial law barrister Ian Neil, SC, said it is difficult to argue that a direction to work from the office is unreasonable in a climate where citizens can do all manner of activities freely, including attending airports without a mask.

“Increasingly, as society adapts [to the virus] it becomes less and less likely that an employee will be able to argue a direction to return to work is unreasonable,” he said.

Maurice Blackburn employment lawyer Mackenzie Wakefield echoed Neil’s comments.

“In almost every case, that request [to return to the office] will be a lawful request, provided the return to work doesn’t involve any illegality outside the scope of the employment contract,” Wakefield said.

More than 94 per cent of Australians aged above 12 have now had at least two doses of a COVID-19 vaccine, and with minimal COVID restrictions currently in place, a return-to-office request “is likely going to be reasonable”.

“Increasingly, as society adapts [to the virus] it becomes less and less likely that an employee will be able to argue a direction to return to work is unreasonable.”

Employment and industrial law barrister Ian Neil SC

“You’re going to need more than just a general anxiety about catching COVID-19 or the flu ... You’re going to need probably quite an extreme exception,” Wakefield said.

Employees who resist employers’ directions to return to the office therefore potentially leave themselves open to disciplinary action.

While employers can compel attendance in reasonable circumstances, they should take care to review cases where staff are immunocompromised or have underlying health conditions, Neil said, because this might change what is reasonable for a staff member to do.

Samantha Maddern, a Perth-based workplace relations, employment and safety partner at law firm Mills Oakley, observed that conversations about return-to-office policies are being had within her own firm as well as with clients.

Her Melbourne colleagues, who have suffered more frequent and more protracted lockdowns, are generally more reluctant than Perth colleagues to come back into the office regularly, she said. Meanwhile, Sydney and Brisbane are somewhere in the middle.

“People just got so comfortable with [remote work] that it’s a struggle for many employers to get them back,” Maddern said. “It is actually an ongoing problem.”

Those in supervisory, team leader or managerial roles may also find it more difficult to resist coming into the office as their teams will be less willing to return if they themselves are absent, she added.

On the whole, the best solutions will be a ‘carrot’ rather than a ‘stick’ approach, “balance all the circumstances” and accommodate workers by providing a hybrid solution.

It’s also not in employer’s interests to be heavy-handed in compelling workers to come back, cautioning against blanket rules. “There could be a situation where the employer could take the ultimate disciplinary action of dismissal, but in all cases, that would be a last resort,” Maddern said.

Employers that find most success in their return-to-office policies will be those keeping in mind that flexibility is a top priority for job candidates and key to retaining existing staff, she added.

A Taking the Pulse of the Nation survey by Roy Morgan and the Australia Institute this week found that while 88 per cent of workers wanted to work at least part of the week from home, only 49 per cent were offered a hybrid work model.

Worksafe in Victoria and Safework in NSW both provide guidance to employers that under health and safety laws businesses must work to lower the risk of COVID transmission in the workplace.

This can include reviewing ventilation in work spaces, increasing cleaning and disinfection in the workplace and practicing physical distancing in the office.

Victoria recorded 10,672 cases of coronavirus on Tuesday, while NSW hit 10,806 cases and absenteeism is surging as infections spread.

Payroll data drawn from small business accounting platform MYOB shows that in June, the number of workers taking sick or personal leave was up 35 per cent on the seasonally adjusted average for the month. Victorians saw a 57 per cent spike in sick days, while NSW was up 33 per cent.

MYOB chief employee experience officer Helen Lea said the situation could worsen.

“As COVID infections increase in the first week of July, and experts warn of a third wave, it is possible we may see the rate of leave increase again in the coming weeks,” Lea said.

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