While many of us are celebrating a gradual return to the workplace and some semblance of a pre-COVID normality, this is not necessarily a sentiment shared by all. Whether by reason of health concerns, adaptation in lifestyle or relocation, a number of Australians will be asking the question, do I have to return?
In most cases, the answer to this question is likely to be yes. There is an implied term in all contracts of employment that an employee must obey a lawful and reasonable direction of their employer. So as long as an employer’s instruction to return to the workplace can be said to be both lawful and reasonable, their employees will be required to comply.
What is a ‘lawful and reasonable’ direction?
Whether a direction is lawful will generally be determined by the relevant legislation, the employee’s contract of employment and any applicable modern award or enterprise agreement.
Generally speaking, so long as a direction is within the bounds of the law and the scope of the relevant employment contract, then it is likely to satisfy the lawful requirement.
What might amount to a reasonable direction is a little more ambiguous. There are no hard and fast rules and such an assessment could vary significantly depending on a number of factors, including:
- specific terms within the relevant contract;
- personal circumstances;
- established customs or practices in the relevant industry; or
- circumstances unique to the relevant workplace.
As we have seen, a major event, such as the outbreak of a global pandemic, may drastically shift the parameters of what was previously considered lawful and reasonable.
The imposition of stage 4 restrictions in Victoria for example, saw the unthinkable happen, with all but ‘essential workers’ temporarily prohibited by law from attending their workplaces.
While the harshest COVID-19 restrictions have been lifted (for the time being), workplaces throughout Australia are still required to comply with prevailing government directions aimed at preventing the spread of COVID-19, including requirements as to:
- workplace capacity limits;
- physical distancing;
- the preparation of COVIDSafe plans; and
- hygiene and cleaning practices.
What does this mean for you?
If your employer is unable or unwilling to comply with the restrictions currently imposed in your state or territory, then a direction to return to the workplace may not be considered lawful and reasonable.
Similarly, it may be unreasonable for your employer to insist upon your return depending on your personal circumstances. For example, if you fit into a high-risk category for COVID-19, or if your circumstances have changed such that working from home would constitute a reasonable adjustment.
It is important to understand that a refusal to comply with the directions of your employer can have serious consequences. Depending on the particular circumstances of your case, a refusal to return to the workplace may provide valid grounds for disciplinary action or even dismissal.
If you are concerned about returning to the workplace under the instruction of your employer, it is best to seek legal advice in respect to your particular situation prior to acting.
If you have been dismissed by your employer for refusing to return to the workplace despite having what you believe to be a valid reason, this may amount to an unfair dismissal or general protections dispute under the Fair Work Act. If this is the case, you only have 21 days to act and should strongly consider obtaining legal advice immediately.