Lockdown restrictions during the COVID-19 pandemic has resulted in an unprecedented number of employees working from home. In response, employers have fielded employee requests for assistance with equipment required to set up working from home arrangements.
A question which has arisen regularly, is the extent to which an employer is required to provide equipment to employees where they are required to work from home as a result of Government directives rather than at their own request. Relevant considerations include employers’ statutory obligations with respect to the health and safety of employees which extend to working from home arrangements, and guidelines issued by safety regulators.
In the recent decision of McKean v Red Energy Pty Ltd  FWC 5688, the Fair Work Commission dealt with this scenario. Mr McKean brought an unfair dismissal claim alleging that he was left with no choice but to resign, amounting to a ‘constructive dismissal’, after his employer refused to reimburse him for a desk that he needed to purchase in order to work from home.
The Fair Work Commission swiftly rejected the employee’s claim. In doing so, the Fair Work Commission identified several reasonable alternative options – including borrowing a desk from a friend – that the employee could have undertaken before he needed to even consider resigning. This was in a context where the employer had provided the employee with other equipment and additional resources to support him with working from home. Details of the decision are set out below.
Mr McKean was employed by Red Energy Pty Ltd (Red Energy) in the position of ‘customer assist specialist’. Mr McKean’s position required him to use a computer and speak to customers on the telephone.
The events leading to Ms McKean’s resignation can be summarised as follows:
- from 16 March 2020, Red Energy encouraged employees to work from home due to the COVID-19 pandemic. Mr McKean informed his employers this was not possible as he did not have a desk at home and was then permitted to continue working in the office.
- on 8 May 2020, Mr McKean asked if Red Energy would reimburse him for purchasing a desk. Red Energy refused. However, they confirmed he could continue to work from the office for the time being
- on 7 July 2020, the CEO of Red Energy endorsed the Victorian government Stage 3 Lockdown restrictions, requiring employees who could work from home to do so. Mr McKean continued to work from the office despite this direction
- Mr McKean’s union representative then contacted Red Energy, claiming that Mr McKean had been directed to work from home without the “appropriate equipment necessary to carry out his work from home, namely a desk”
- on 17 July 2020, Red Energy asked Mr McKean to confirm if he was complying with the direction to work from home. On that same day, Mr McKean applied to take six weeks of leave commencing on the following Monday. Red Energy refused this request
- on Monday 20 July 2020, Mr McKean sent Red Energy an email stating he was resigning from Red Energy, effective immediately. This resignation was promptly accepted by Red Energy.
Unfair dismissal claim
Mr McKean believed he was unfairly dismissed, in the form of a ‘constructive dismissal’, and ultimately had no choice but to resign after Red Energy failed to consider his personal circumstances when they refused to provide or pay for a desk.
Mr McKean also said Red Energy’s refusal to consider any alternatives to working from home forced him to resign. Mr McKean suggested he could have worked from the office and remained compliant with the Victorian Government’s health orders or alternatively, Red Energy could have granted his request for six weeks leave. In Mr McKean’s words, he was rejected from the office and without any safe place to work he had no choice but to resign.
Additionally, Mr McKean claimed Red Energy was in breach of their safety obligations to provide a safe working environment under the Occupational Health and Safety Act 2004. In support of this claim, Mr McKean relied on WorkSafe’s “Guide for Employers: Preparing for a Pandemic” which required employers to provide adequate resources for employees to work from home such as technology and furniture.
This was rejected by the Fair Work Commission.
The Fair Work Commission determined that Red Energy’s refusal to pay for Mr McKean’s desk did not force him to resign. When giving evidence, Mr McKean conceded he could have afforded to purchase a desk as he even revealed he had purchased one since his resignation. The Fair Work Commission found that Mr McKean’s refusal to purchase one for work was a matter of principle.
The Fair Work Commission also found Red Energy had provided sufficient equipment to allow Mr McKean to work from home. Whilst they did not provide Mr McKean with a desk, Red Energy provided him with a laptop; a headset; an adjustable chair; ergonomic assessments; as well as access to an occupational therapist and online resources. With reference to Mr McKean’s computer based job, Red Energy believed it was not fair and reasonable to provide Mr McKean with a desk.
Moreover, the Fair Work Commission found there were alternatives to resignation readily available. As an alternative to buying a desk, Mr McKean could have borrowed one. He could have asked for a shorter period of leave or he could have contacted WorkSafe about his safety concerns. Despite these options – Mr McKean did not pursue them.
The Fair Work Commission noted that Mr McKean’s resignation communication did not refer to any element of compulsion to resign as there was none. Instead, the Fair Work Commission found that Red Energy acted reasonably. Mr McKean’s request for six weeks’ leave was excessive and, as an alternative, he could have asked for less.
Finally, the Fair Work Commission found that Mr McKean’s refusal to comply with Red Energy’s directions to work from home was an available ground for dismissal on the basis that Mr McKean failed to comply with a reasonable and lawful direction.
Key points for employers
Although the Fair Work Commission did not enunciate a clear test for employers, this decision illustrates that the required level of support from an employer is based on an inquiry into the type of work performed by the specific employee and the level of assistance already provided by the employer.
In this case, the provision of equipment and other resources to the employee to support his work from home arrangements was considered sufficient. The employee’s request for a desk beyond these measures of support was, in the circumstances, unreasonable.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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