Employee sacked for defying return to office mandate succeeds in unfair dismissal claim

The Fair Work Commission has held that an employee at Insider AU, an e-commerce support firm, was unfairly dismissed after his employment was terminated for working from home on a mandated office day.¹

Facts

Tomaso Moro was a sales representative at Insider AU, which had instituted two mandatory office days per week. Moro had previously not attended the office on a number of those mandatory days, and had been spoken to informally about this by his employer.

On 30 August 2023, Moro did not attend for work on a mandatory office day. He had updated his work calendar to reflect that he would be working from home. In response to an enquiry from his manager, Moro said that he had not attended the office due to having a tradesperson at home fixing his dishwasher. His manager responded "Sorry Tom, I’m calling BS on this. This is not good enough - you are supposed to give us a heads up WAY in advance as opposed to having me chase you are, like this.” The following day the manager told Moro on the phone that it was "best to part ways". The employment ended the following day when Moro's access to Insider AU's systems was cut off.

Was failure to attend the office on a mandated day a valid reason for dismissal?

In this matter, Moro's failure to attend for work on one mandated office day (being 30 August 2023) did not constitute a valid reason for dismissal. This was the case despite the fact that the employer had raised Moro's non-compliance informally earlier that year.

Key factors in Commissioner McKenna's decision were that the non-attendance on 30 August 2023 was the only reason provided for the termination (rather than Moro's previous non-attendance also being a factor); the Commissioner's acceptance that Moro had provided reasons for his absence on that day and previous days; and the employer had not given Moro any formal warnings. The informal discussion months earlier did not change the position.

The dismissal was otherwise unfair

In addition to there being no valid reason for the dismissal, Commissioner McKenna held that the dismissal had been carried out in a procedurally unfair manner. Considering all of the factors under section 387 of the Fair Work Act 2009 (Cth), Commissioner McKenna was satisfied that the dismissal was harsh, unjust or unreasonable and awarded Moro 12 weeks' pay in compensation.

The key factors were as follows.

• Moro was not properly notified of the reason for his dismissal and was not given an opportunity to respond to that reason. Rather, the decision to dismiss was pre-determined in advance of the phone call between Moro and his manager when Moro was told that it was "best to part ways".
• That conversation was "self evidently" an unreasonable refusal to allow Moro to have a support person at a discussion regarding the dismissal.
• While the employer alleged that Moro was dismissed for "poor work performance", this was not accepted by the Commissioner. Instead, the Commissioner accepted Moro's evidence that he was a high achiever. In any case, no warnings were given for poor performance.
• Moro was not paid his contractual notice period of eight weeks (instead receiving only two weeks' pay in lieu of notice).
• Insider AU is part of a group of companies operating in 30 international locations and with over 1,000 employees, including in-house legal counsel. With this in mind, the procedurally unfair manner in which the dismissal was carried out was surprising.

Key takeaways for employers

In this case, the employer's reliance in the termination correspondence on the final day of non-compliance with its attendance mandate and the fact that the dismissal was carried out in a manner "bereft" of procedural fairness meant that Moro's claim was successful.

Employers seeking to manage non-compliance with attendance mandates should be aware that it is unlikely to provide a valid reason for dismissal unless the employee has been given prior warnings regarding the non-compliance.

As is the case in any dismissal process where an employee is protected by the unfair dismissal provisions, employers should ensure that:

• there is a valid reason for dismissal (which in almost all cases will likely need to be more than low-level non-compliance on a single occasion);
• if the reasons for dismissal include multiple breaches of a return to office mandate, this must be clearly explained and each occasion being relied upon should be referenced and put to the employee;
• the employee must be given an opportunity to respond;
• if an employer intends to move from informally managing an issue to formally doing so, the employee should be put on notice about this, including the potential consequences if the behaviour continues;
• the dismissal must otherwise be carried out in a procedurally unfair manner (including ensuring there is no unreasonable refusal for an employee to have a support person at dismissal-related discussions).

Please contact our Workplace Relations & Safety team for assistance with reviewing and updating your performance management procedures, managing office attendance, or support in navigating employee dismissals.

¹ Tomaso Edwards Moro v Insider AU Pty Ltd [2023] FWC 3148.