Fair work laws, working from home and covid

As a general rule, employees who worked from home during the height of the covid pandemic did not by doing so gain a right to either continue to work from home or refuse to be vaccinated against covid 19 where that was required when returning to work.

“(5) Work From Home

[50] The Applicant was an employee based at the Erskine Park DC. 12 There is no suggestion that his contract was varied by him apparently working from home during the period of lockdown. From 14 October 2021, the Winc Road Map to Returning to the Office directed a staged return to the workplace. Given the Applicant’s vaccination status, he continued to work from home until her termination.

[51] I accept the evidence of Ms Kent that:

“The role performed by the Applicant required him to have a high degree of involvement with operational employees at the Erskine Park DC and it was for this reason that the Applicant performed his work from the Erskine Park DC prior to COVID-19 restrictions.”

[52] The Applicant directly addressed the above statement in his reply evidence, most pertinently as follows:

“Whilst working on site has its advantages with communication, it is not an inherent requirement to perform the role seeing that the team of three Sales Operations Coordinators in 2019 had a “high degree of involvement with the operational employees” at various distribution centres where they were not located on site and in states they did not reside in.

….

The “high degree of involvement with operational employees” at the distribution centres was not all year round. It was during the peak operational period of Back to School (November to January). In addition, during this period I was not at the distribution centre all 5 working days. I would often work 3 days on site and 2 days from my place of residence as the business accommodated flexible working arrangements.”

[53] That the Respondent sought, after the disruption of the lockdowns, to avail itself of the “advantages of communication” that the Applicant concedes existed was understandable, as was its desire to reinstate the “high degree of involvement with operational employees at the distribution centres”, particularly the Erskine Park DC. While it may have suited the Applicant in his desire to avoid being vaccinated, the Applicant could not adequately perform his duties while not attending the Respondent’s premises.”

Tey v Winc Australia Pty Ltd (2022) FWC 1566 delivered 2 August 2022 per Cross DP