Businesses have had to be flexible during the COVID-19 pandemic and it has become evident that many roles can be effectively actioned from home. However, if an employer directs an employee to return to the workplace, can an employee refuse this request?

Employees are expected to follow lawful and reasonable directions provided by their employer when it comes to performing their role. Therefore, if an employee is given a reasonable request to perform work in a particular workplace and the request complies with Australian law, the employee cannot refuse this direction unless the employee has a reasonable concern about their health and safety or perhaps another legitimate reason (such as caregiving etc).

In the event that the employee refuses to return to the workplace and they have not raised any reasonable or legitimate concerns about the request, an employer may choose to go down a formal performance management path and take reasonable disciplinary action. However, in order to mitigate the risk of an unfair dismissal or adverse action claim should disciplinary action lead to termination, it is prudent that businesses comply with relevant obligations within the Fair Work Act.

On the other hand, employees who have a legitimate concern about returning to work may request ‘flexible working arrangements’. To do this, employees must meet the eligibility criteria under the National Employment Standards in the Fair Work Act and applications must be considered thoughtfully, noting an employer can only refuse a request on ‘reasonable business grounds’.