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In brief

The Fair Work Commission has found that an employer’s decision to not provide an employee with an at-home desk did not mean that the employee had no option but to resign from his job. The employee alleged that he was constructively dismissed when, as part of Victoria’s stage 3 coronavirus restrictions, his employer directed him to work from home but refused to provide him with or pay for a desk at his home. The Commission held that the employee could have purchased a desk himself or borrowed one from a friend.

This decision demonstrates that while employers should provide adequate equipment to allow employees to work from home, there will be a limit on what needs to be provided. Employers should assess what is reasonable and necessary on a case by case basis when requiring an employee to work from home.


Jayson McKean, a Victorian employee of Red Energy, lodged an unfair dismissal claim against his employer, alleging that he was forced to resign from his position and that his dismissal was unfair.

Under the Fair Work Act 2009 (Cth), a person is considered to have been dismissed if:

  • their employment was terminated at the employer’s initiative; or
  • they resigned, but were forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

Mr McKean contended that he was forced to resign because, when the company directed him to work from home as a result of Victoria’s stage 3 coronavirus restrictions, it refused to pay for or provide him with a home desk, and also refused to allow him to work from the office or take six weeks’ leave.

Facts

In May 2020, when working from home was initially proposed by his employer, Mr McKean had recently moved to a new house and claimed he did not have furniture, including a table or desk to work from. Red Energy suggested that he look at second hand websites to obtain one. Mr McKean stated that he was under financial pressure due to medical expenses and was ill-equipped to work from home.

After being directed to work from home following the Victorian government’s reintroduction of stage 3 coronavirus restrictions in July 2020, a union official sent Red Energy an email alleging that Mr McKean was been directed to work from home without being provided with the appropriate equipment necessary to carry out his work from home. The union requested the employee be either reimbursed for the cost of purchasing a desk or be allowed to continue to work from the office.

Red Energy provided employees with equipment and support necessary to work from home, including a laptop, headset, adjustable chair, ergonomic assessments, access to an occupational therapist, and online resources, but told Mr McKean’s union representative that it would not provide desks or reimbursement for purchasing them, as it was not fair and reasonable to do so.

Mr McKean continued to work from the office despite being directed to work from home. He then sought 6 weeks’ leave at short notice, which the company said it could not accommodate. Following this, Mr McKean sent the company an email resigning from his employment, effective immediately (and made no reference to the lack of a desk as a reason).

Mr McKean contended that the company’s conduct left him no reasonable choice but to resign. Mr McKean referred to occupational health and safety legislation and guidelines and alleged that Red Energy failed to take reasonable steps to maintain a safe working environment by expecting him to work from home without a desk. He also contended that he could have come into the office under Victoria’s stage 3 restrictions and the Stay at Home Directions (Restricted Areas) (No 2) (Vic) (Stay at Home Directions), as his circumstances meant that it was not reasonably practicable for him to work from home.

Decision

The Commission rejected Mr McKean’s argument that he was forced to resign. Instead of resigning, the employee could have simply bought a desk or borrowed one from a friend. Significantly, in evidence the employee acknowledged that a desk can be purchased cheaply and that he could have afforded to buy one. The prospect of having to pay a small sum to buy a desk was not a matter that forced the employee to resign but was a matter of “principle” for Mr McKean.

The Commission rejected the assertion that the company’s requirement for Mr McKean to work from home constituted a contravention of occupational health and safety legislation. The resources provided by Red Energy to the employee were adequate to enable him to work from home, having regard to the nature of his work.

There was no basis for Mr McKean to argue that it was not reasonably practicable for him to work from home for the purposes of Victoria’s Stay at Home Directions, as he could have bought a desk.The Commission also said that Red Energy did not act unreasonably in refusing his six week annual leave request, as it was an excessive period to grant without sufficient notice.

Therefore, the employee had not been ‘dismissed’ within the meaning of the Fair Work Act and he could not access the unfair dismissal regime.

It is also worth noting that the Commission said that, while Red Energy did not do so, the company would have been entitled to dismiss Mr McKean for failing to follow a lawful and reasonable direction when it directed him to work from home and he refused to do so.

Considerations for your business

The resources that Red Energy provided to its employees to work from home were considerable and in many respects more comprehensive than what many Victorian employers have offered to their employees who are working from home.

While, in this case, the Commission said that the employee had been provided with adequate resources to perform his position from home, what is required will depend on the circumstances, including the personal circumstances of an individual employee.

In particular, employers should not apply a “one size fits all” approach to working from home arrangements and should consider any individual requests on their own merits.  It will be important to consider the individual circumstances of an employee in deciding what equipment should be provided, including:

  • the nature of their position and duties;
  • whether they have a disability (which may require the employer to make reasonable adjustments to their workplace so that they can perform the job effectively); and
  • other personal circumstances, such as family responsibilities, living arrangements and domestic violence concerns (which might give rise to a need for the employee to work from another location or in the office).

Please contact us to discuss your working from home questions.

Jayson McKean v Red Energy Pty Ltd [2020] FWC 5688

Author

Nikita is an associate in the Employment & Industrial Relations team. Nikita joined the Firm in 2015 and, following rotations through different teams within the Firm, commenced her current position in March 2018.