Alleged abandonment of employment for WFH leads to win for worker

The Fair Work Commission recently dealt with an unfair dismissal case, which involved an employee being dismissed on the basis that he abandoned his employment when he opted to work from home.

The worker commenced his employment with Koureli back on 1 March 2023 as a head trainer and food production support, which was a full-time role.

For the duration of his employment, the worker reported to Teah Perdikaris, who is the director of the Australian Institute of Hospitality and Trade (AIHT). The AIHT is the entity that provides the training services through which the worker performed his day-to-day duties.

On 8 November, Perdikaris sent the worker an email, raising concerns regarding allegations that the worker was cutting his work days short, had several unopened emails, and was travelling during business hours for personal reasons.

This resulted in the worker providing his resignation letter to his employer in accordance with the six-week notice period that was in his employment. In his resignation letter, the worker requested to work from home one day per week during his notice period. He often worked from home on an ad hoc basis.

On 16 November, a meeting was held between the worker, Perdikaris, and Carmelle Watkins regarding the work to be performed during the worker’s notice period. During this meeting, tensions were apparent, with the worker expressing his frustration with Watkins.

The worker alleged that during the meeting, Watkins called the worker “ridiculous” and said words to the effect that he was “behaving like a 10-year-old” and “should grow up”. Watkins admitted to saying words to the effect that he would hand over his work “when he was 10”.

The worker left the meeting and packed up some of his belongings, including his work laptop. After leaving the meeting, the worker called Perdikaris, asking for a one-on-one to speak about what transpired during the meeting, to which Perdikaris declined.

Perdikaris was unwilling to meet the worker on that day; however, she offered to discuss the situation the following day on the phone. The worker offered evidence that he reiterated to Perdikaris that he would work from home until he met with her to discuss what occurred during the meeting.

He also presented evidence that Perdikaris did not ask him to return to work in the office that day, nor did she tell him that he could not work from home.

Later that day, Watkins sent an email to the worker and apologised for upsetting him during the meeting. She also signed off on the email by saying that she looked forward to seeing him Friday or Monday, noting that she was hopeful they could continue to remain professional while at work together.

At 9:54am the following day – only six minutes before their scheduled meeting – Perdikaris sent the worker a text message that she was no longer able to meet.

On the morning of 20 November 2023, the worker informed Perdikaris via email that he was continuing to work from home that day. He still had not received any indication that their planned phone call was going to transpire at another time. The worker confirmed through the email that he would continue with the job tasks he was given back on 16 November.

Later that day, the worker realised that his access had been locked out of the employer’s database. After contacting Perdikaris to inquire about this issue, he was redirected to an email that was sent to his personal email address.

The email from the employer said that the worker was not authorised to work from home and that he had walked out of the meeting on 16 November 2023 without permission and had not returned to the office since; therefore, by doing so, he had abandoned his employment and relinquished his position.

The worker then replied, querying about when he would receive his outstanding pay and notice pay, to which the employer ignored and instead directed the worker to upload all completed work to a USB drive and return it, along with the overall balance of company property in his possession, by 5:00pm that day. If this was not completed, the employer would contact the police.

On 21 November, the employer did, in fact, contact the police and made a complaint about an access key and work laptop, which was eventually posted to the employer.

Consideration

Overseeing this case, deputy president Alexandra Grayson went through the evidence, attempting to discover a valid reason for dismissal based on the worker’s capacity or conduct.

“As is apparent from the background above, there was no valid reason for the [worker’s] dismissal. The [worker] left the workplace following a meeting with his manager and a colleague where he felt he had been unreasonably treated,” Grayson said.

“Whilst reasonable minds might differ on whether this reaction was justified, it either was or should have been, apparent to his manager that he was upset.”

Grayson accepted the worker’s evidence in regards to how he communicated to Perdikaris that if they didn’t discuss the matter, he would work from home effective immediately until such time when they did have the conversation.

“There is no evidence before me that Perdikaris asked him to return to the office or said that he could not work from home until a meeting had been held, as per his request. A meeting was then arranged which was subsequently cancelled on short notice by Perdikaris.

“No enquiries were made about the whereabouts of the applicant, and he continued to make contact with his workplace, continued to work, continued to be contactable, and continued to press for a meeting to resolve his concerns about the meeting of 16 November,” Grayson said.

“I do not consider that his conduct in not attending the workplace, in these circumstances, amounted to misconduct or that it provided a valid reason for his dismissal.”

However, the employer made other allegations that the worker carried a negative demeanour, had performance issues, and allegedly locked the bathroom door while Watkins was inside.

To which Grayson simply replied: “There was no evidence that he was being formally performance managed in relation to these issues or that he had received any formal warning/regarding them.”

Grayson eventually concluded from the evidence that the employer failed to offer the worker procedural fairness, such as access to a support person during the process of his dismissal, nor did they provide him with an opportunity to reply to the allegations. It was also noted that contacting NSW Police in regard to the work equipment contributed to the harshness of the dismissal.

“I am satisfied that there was no valid reason for the dismissal of the [worker] and that it was harsh, unjust and/or unreasonable,” Grayson said.

Compensation was, therefore, the next step in this case, which in itself was an endeavour to figure out. Eventually, Grayson decided: “I consider that the [worker] was unfairly dismissed and will make an order that the [employer] pay $9,208.16 gross less taxation as required by law to the [worker] in lieu of reinstatement within seven days of the date of this decision.”