The applicant commenced employment with the Commonwealth of Australia (represented by the Australian National Audit Office) (ANAO) in 1998, and at the time of her dismissal was employed as an Auditor in the ANAO’s Performance Audit Service Group in Canberra. The applicant was aged 64 and had been a Commonwealth public servant for 33 years, with over 20 years at ANAO.

The COVID-19 pandemic triggered a change in work arrangements. Staff moved to remote working. The applicant was initially approved to work interstate and was caring for her terminally ill uncle. Approval was revoked and the applicant was required to return to work in Canberra. She ultimately did so, but in the meantime it was alleged that she failed to comply with directions and her absences were unauthorised such that her employment was terminated.

Deputy President Dean held that the applicant had provided medical support for her own health concerns and did meet the definition of carer for the purposes of the Fair Work Act 2009 (Cth) (FW Act), such that the directions to return to the office were not reasonable. Performance concerns were not put to the applicant and were not relevant. The applicant did return to the office when she was able to do so and there was no valid reason for dismissal. The applicant was reinstated.

This decision highlights that employers must carefully take into account the particular circumstances of each worker when taking measures to move back to pre-pandemic normality.

Background

The applicant worked as a performance auditor on a part time basis, 3 days per week.

On 16 March 2020, the applicant sought approval to work from home until 13 May 2020 in reliance on a medical certificate which stated that the applicant was considered to be at increased risk of complications from COVID. The ANAO approved the request.

On 23 March 2020 the ANAO informed all staff that they were encouraged to commence working from home from the following day in response to COVID. As a result, the applicant continued to work from home after her approval to work from home expired on 13 May 2020.

In April 2020, the ANAO published the ‘Flexible Work Policy 2020 - Pandemic Version’. The policy required that staff who wished to work remotely from interstate locations must seek approval. The applicant wrote to the Deputy Auditor-General on 30 July 2020 seeking retrospective approval for remote working arrangements from 18 May 2020 to 29 July 2020, and approval for remote working arrangements for a six month period commencing 30 July and ceasing on 30 January 2021. The applicant advised that a member of her family was terminally ill and she sought to remain in Woolgoolga to continue caring for them. Approval was provided through to 31 December 2020, subject to a number of conditions.

The applicant made applications for personal leave and leave without pay. The requests were declined on the basis that “the person you are caring for is not a member of your immediate family, and Woolgoolga is not your principal place of residence”.

On 15 September 2020, the applicant was advised by email that her remote work arrangements were revoked. The applicant was required back at work in Canberra on Tuesday 29 September 2020. The applicant was required to attend a performance meeting on her return.

The applicant subsequently unsuccessfully applied for personal leave and was incorrectly advised that she was ineligible to access her long service leave.

The applicant was provided with directions to return to work at the Canberra office and failed to comply. This resulted in Code of Conduct investigations and findings against the applicant.

While the applicant was in Canberra on 6 April 2021, her uncle failed to respond to her phone call and was found unresponsive. He was rushed to hospital and died the following day. The applicant returned to work on 21 April 2021, after arranging her uncle’s funeral.

On 19 May 2021, the ANAO determined to impose on the applicant the sanction of a reprimand, a reduction in classification to APS6, and a reassignment of duties for her failure to comply with the first direction to return to work in Canberra.

The applicant was also provided with a notice that it was intended her employment be terminated, and provided with the opportunity to respond.

On 2 June 2021, the applicant’s employment was terminated under section 29(3)(c) of the Public Service Act 1999 for non-performance of duties.

Decision

The applicant made an application pursuant to s394 of the Fair Work Act 2009 (FW Act) claiming that she was unfairly dismissed. She sought reinstatement to her former position.

Deputy President Dean found that there was no valid reason for the applicant’s dismissal.

An employee is required to follow a direction that is both lawful and reasonable. In most circumstances refusal by an employee to follow their employer’s direction to attend the workplace would be a valid reason for dismissal. However, the circumstances in this matter were described as unique. The directions to return to the office were considered lawful but Deputy President Dean was not satisfied that the directions were reasonable in the circumstances.

Deputy President Dean was satisfied that the applicant met the definition of carer. The applicant was residing at Woolgoolga with her uncle at the relevant time and the ANAO had been advised that this was her residence. The applicant had provided medical certificates confirming she was responsible for his care when he was not in hospital. She was entitled to make a request for flexible working arrangements, which was only able to be declined on reasonable business grounds.

Deputy President Dean was not satisfied that the ANAO had reasonable business grounds to revoke the flexible working arrangement that had been approved for her through to December 2020. None of the purported performance issues had been formally raised with her.

The taking of leave, accrued after more than 30 years with the Commonwealth public service, was no basis for revoking the remote work arrangement. At this time most staff had been working from home from March 2020 and were not required to return to the office until March 2021. The revocation of remote work arrangements was held to be unreasonable.

The unique circumstances of this matter were held to be distinguishable from the circumstances in Dunkerley v Commonwealth of Australia [2012] FWC 10220. In that matter, there was a “wilful refusal to abide by her employers directive to attend the workplace or offer any proper medical evidence for her failure to do so ...”. In this case, the applicant had provided medical support and did return to work before she was dismissed.

The ANAO argued that it was not available for the Commission to reinstate her to her EL1 position, because this was not the position she held immediately prior to her dismissal. Deputy President Dean agreed with this submission.

The ANAO also argued that reinstatement was not an appropriate remedy given the applicant’s prolonged absences from work and her repeated and wilful defiance of reasonable directions. It was argued that there had been an irreparable breakdown in the employment relationship. Deputy President Dean found no basis to determine that the employment relationship was irreparably damaged.

It was held that the applicant’s employment was unfairly terminated and she was reinstated to her APS6 position.

Further information / assistance regarding the issues raised in this article is available from the author, Emma Reilly – Partner or your usual contact at Moray & Agnew.