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Worker demands boss provide WFH desk

The Fair Work Commission held that the employee had voluntarily resigned.
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Worker demands boss provide WFH desk

Worker demands boss provide WFH desk

12 November 2020

By Mike Toten

An employee claimed he was dismissed because his employer refused to provide him with a desk for him to work from home. The employer, an energy provider, had provided employees with various other forms of assistance to enable them to work from home. The Fair Work Commission held that the employee had voluntarily resigned.

 



Facts of case

Due to COVID-19, the employer provided the following forms of assistance to encourage employees to work from home: laptop, headset, adjustable chair, ergonomic assessments and access to an occupational therapist.

The employee, a customer service officer, claimed he could not work from home because he had inadequate furniture there and was under financial pressure at the time. He requested the employer supply or pay for a home work desk. The employer refused, suggesting he buy his own desk, but allowed him to continue working at its head office while other employees were relocating to home. However, when Victoria implemented stage 3 restrictions, the employer said he could no longer work at head office. A document issued by WorkSafe Victoria, Guide For Employers: Preparing For a Pandemic, mandated that employees were now required to work from home if it was feasible for them to do so.

The employee initially continued to attempt to work at the office and again demanded a work desk to use at home. When the employer again refused that request and also a short-notice request to take six weeks’ leave, he resigned and claimed constructive dismissal, arguing that not having a suitable desk left him with no option but to resign. He provided a letter stating that he was resigning, effective immediately.

He relied on sec 4.3.2 of the above guide, which required employers to provide adequate resources to support employees working from home, including “technology and furniture”. He also claimed that the employer had breached the Victorian Occupational Health and Safety Act 2004 by not providing a safe workplace and not consulting with him over safety-related work matters. He further claimed that his situation was covered by the Victorian Public Health Stay at Home Directions that provided for exemptions if it was not reasonably practicable to work from home – thus creating an “urgent need” to continue working at head office.


Decision

The FWC held that the guide did not require the employer to provide office furniture to employees working from home as a matter of course.

This employer had provided employees with adequate resources to work from home (see list above). The employee did not have “no other option but to resign” – he could have bought himself a desk, borrowed one or requested a shorter period of leave. Therefore, he had voluntarily resigned and could not claim unfair dismissal. The FWC also rejected his safety-related arguments.

It added that directing employees to work from home in the COVID-19-induced circumstances amounted to a lawful and reasonable directive. Therefore, the employer would have had a valid reason for dismissing the employee (for refusing to work from home) had it chosen to do so.

The bottom line: The issue of whether or not it was reasonable to require the employer to provide the employee with a home work desk (or pay for one) was eventually peripheral to this case, so it provides no implications for other employers in similar situations.

Instead, the employee claimed constructive dismissal when he had clearly resigned voluntarily. Constructive dismissal means that an employee had no other option but to resign, but in this case the employee did have other options.


Read the judgment

McKean v Red Energy Pty Ltd [2020] FWC 5688, 26 October 2020

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