By
Mike Toten
Mike Toten is a freelance writer, editor and media commentator.
Evidence collected by the BOM revealed he had failed to return to work and Australia when he claimed. He also later travelled back overseas without telling the BOM despite it having rejected his request for leave. As a result, he was dismissed and lodged a claim of unfair dismissal in the Fair Work Commission.
The case highlights the importance of having a clear policy on remote work arrangements.
Facts of case
The employee failed to return to work after an approved period of leave. He told the BOM 12 days after the scheduled day of return that he had returned to work and was working from home, but failed to reply to other contact attempts or attend work meetings. The BOM discovered that he had been logging into its network via an intellectual property address in the USA.
It asked him to provide evidence of his travel and work (such as tickets, passport records, and flight details) but he refused. The BOM then claimed that he had breached the Australian Public Service Code of Conduct by:
- using a personal device on its networks without permission (which threatened the security of those networks)
- failing to provide evidence of his travel dates
- lying about his location (claiming to be in Australia while still overseas), and
- breaching the BOM’s Working From Home Policy by working from overseas without permission.
The employee later emailed to claim that the delay in returning to Australia was caused by problems with return flights (during COVID-19 restrictions) and contracting COVID-19 himself.
The BOM conducted an investigation that concluded that the employee had lied and dismissed him for dishonesty and undermining trust in the employment relationship.
Employer’s remote work policy breached
During COVID-19 restrictions, the BOM had implemented a work-from-home/remotely policy, but it was strictly managed. Employees had to obtain permission to do so. The employee had made a request, but it was rejected with the instruction that he must not access BOM networks and systems from overseas.
Therefore, the employee knew what the BOM’s policy and rules were. Despite that, he accessed the network while overseas, claiming that he was back in Australia at the time. He claimed that previous bosses had given him permission to work from home/remotely.
He had returned to Australia 17 days after the date of his scheduled return to work, and the following year travelled back to the USA without telling the employer, and accessed its network while overseas. In the latter case, he had applied for permission to travel, but the BOM had rejected his request.
Decision
The FWC found that the employee genuinely believed he had implied permission to work remotely when it suited him and had no malicious intent against the employer. However, he had done so without the required permission, then lied about it, and then failed to comply with the BOM’s lawful and reasonable directive to provide evidence of his movements and whereabouts.
Those breaches provided valid reasons for dismissal.
What this means for employers
Work-from-home/remote work arrangements are here to stay in the workforce. It is recommended that you establish formal written agreements with employees that do so, covering times/days, contact arrangements, when employees must attend the central workplace, providing evidence of work completed, etc.
Otherwise, if ad hoc arrangements are allowed to develop, disputes may arise and rules may be hard to enforce.
Read the judgment
