Can my employer force me to return to the office, or can I continue to work from home?

The COVID-19 pandemic has changed the way many of us work. Employees have become accustomed to the convenience of working from home, with many reporting increased productivity due to this new style of work. However, as workplaces restrictions are relaxed, more employers will likely direct employees to return to the workplace.

It is a clearly established principle of workplace law that an employee has to obey a lawful and reasonable direction to return to work unless they have a special reason not to (Lambeth v University of Western Sydney [2009] AIRC 47). A step-by-step plan to reintroduce employees to the workplace safely, including protective measures such as cleaning and PPE use where appropriate, could be considered a reasonable direction from an employer. If an employer makes a reasonable direction and an employee does not comply, the employee may face lawful disciplinary action up to and including termination (Grant v BHP Coal Pty Ltd [2014] FWCFB 3027). Nevertheless, employees could still be protected by the Unfair Dismissal and General Protection regimes found in the Fair Work Act 2009 (Cth), subject to other relevant criteria. If you believe you have been wrongfully dismissed due to circumstances involving your return to the workplace, you should contact an employment lawyer immediately.

An employee may object to a return-to-work directive from their employer if the employee is concerned about their health or safety due to the directive. The employer must comply with all government regulations relating to COVID-19 safety in the workplace, which can include ensuring social distancing, regular cleaning, and the provision and mandatory use of PPE if social distancing cannot be enforced. If you have concerns regarding your health or the management of COVID-19 safety in the workplace, you should raise them to your human resources department and/or management as soon as possible.

If you face adverse action such as disciplinary action or dismissal as a result of raising concerns for your health or safety, you should seek advice from an employment law specialist.