INDUSTRIAL RELATIONS

Work in a post-COVID world

James Farrugia Senior Employment & Industrial Relations Advisor

As we steadily gain control over the COVID-19 pandemic through advancements in the knowledge and effective control measures against the virus, the economy will gradually return to the pre-pandemic environment. However, it is likely the changes that have occurred in workplaces as a result of the pandemic are here to stay. Accordingly, it is important that employers understand the relevant workplace obligations.

Post-pandemic world

Although there have been many positives arising out of the pandemic, such as discovering the benefits of flexible work, the reality is that employers may prefer their employees to physically attend work. This could (validly) be due to productivity or safety reasons. As a result of the changes in the workplace and the relevant government restrictions, a dispute may arise where an employee refuses to physically return to the office (either completely or partially). There may be other questions or disputes that arise in the post-pandemic world, but we would like to focus on the two frequently asked questions: • Can employees be directed to physically return to the office/site? • Can employees be directed to receive a COVID-19 vaccine? The relevant workplace legislation confirms that employers can issue ‘lawful and reasonable’ directions to their employees. In the context of the above questions, the employer would have to issue a lawful and reasonable direction for the employee to attend work or receive the vaccine.

Is it lawful?

In summary, the law does not explicitly provide for everything an employer can do. Instead, an employer is free to make decisions that are ‘not unlawful’. This means that a direction will be lawful if it does not breach any laws related to the particular situation and circumstance. This requires a thorough assessment of the individual circumstances, including considerations of applicable working from home policies, the relevant government restrictions, equal opportunity legislation and any other laws that may apply. The direction should never be premised on grounds that may be construed as discriminatory.

Is it reasonable?

Whether a direction is reasonable, both the employee’s individual circumstance and business’ reasonable grounds, including OHS requirements, may be considered. The specific circumstances need to be evaluated carefully before an individual is directed to fully return to the office or be vaccinated. For example, when considering whether requiring vaccination is reasonable will largely depend on the nature of the industry and the current state of the pandemic. Currently, governments have not mandated compulsory vaccination.

Consequences

Notably, the consequence of an employee not following a ‘lawful and reasonable’ direction is serious. It may justify the employer taking disciplinary action against the employee, which may include dismissal. However, an employee subject to disciplinary action for not following a direction that is not ‘lawful and reasonable’ may have grounds to lodge an unfair dismissal claim. Therefore, it is critical that members contact the MBV Employment and Industrial Relations team or seek independent legal advice when considering their workplace obligations.

This may be a time you would like to write a policy?

You can contact the MBV Employment and Industrial Relations team on (03) 9411 4555 if you are considering to issue any direction to an employee or implement new policies, including working from home policy. MBV can assist with these and other matters, including and not limited to unfair dismissals, drafting enterprise agreements or providing template employment documents.