'Legal and reasonable': Why bosses can force you back into the office

“In almost every case, the request [to return to the office] would be a lawful request, provided that returning to work does not involve any illegality outside the scope of the employment contract,” Wakefield said.

More than 94 per cent of Australians over the age of 12 have now had at least two doses of the COVID-19 vaccine, and with COVID-19 restrictions currently minimal, a return to work request would “likely make sense”.

“Increasingly, as society adapts [to the virus] the less likely it is that an employee will be able to unreasonably debate the direction to return to work.”

Employment and industrial law attorney Ian Neil SC

“You’re going to need more than general anxiety about catching COVID-19 or the flu … you’re probably going to need some pretty extreme exceptions,” Wakefield said.

Therefore, employees who refuse an employer’s directive to return to the office could potentially expose themselves to disciplinary action.

While employers can force attendance under reasonable circumstances, they should be careful to review cases where staff are immunocompromised or have an underlying health condition, Neil said, as this might change what a staff member would normally do.

Samantha Maddern, a Perth-based employment, employment and safety partner at the law firm Mills Oakley, observes that conversations about back-to-office policies are taking place within her own firm as well as with clients.

His Melbourne counterparts, who have experienced more frequent and protracted lockdowns, were generally more reluctant than their Perth counterparts to return to work on a regular basis, he said. Meanwhile, Sydney and Brisbane are in the middle.

“People become very comfortable with [remote work] that it’s a struggle for many employers to get it back,” Maddern said. “This is actually an ongoing problem.”

Those in supervisory, team leader or managerial roles may also find it more difficult to refuse to come to the office because their team will be less willing to return if they are not present themselves, he added.

Overall, the best solution is a ‘carrot’ approach rather than a ‘stick’ approach, “balancing all circumstances” and accommodating workers by providing a hybrid solution.

It’s also not in the employer’s interest to force workers to return, cautions against the general rule. “There may be situations where the employer can take disciplinary action of dismissal, but in all cases, it will be a last resort,” Maddern said.

Employers who are most successful in back-to-office policies are those who remember that flexibility is a top priority for job candidates and key to retaining existing staff, he added.

A Taking National Credit a survey by Roy Morgan and the Australian Institute this week found that while 88 per cent of workers would like to work at least part of a week from home, only 49 per cent were offered a hybrid work model.

Worksafe in Victoria and Safework in NSW both provide guidance to employers that under health and safety laws businesses must work to lower the risk of transmitting COVID in the workplace.

This could include reviewing ventilation in workspaces, improving cleaning and disinfection in the workplace and practicing physical distancing in the office.

Victoria recorded 10,672 coronavirus cases on Tuesday, while NSW stood at 10,806 cases and absenteeism spiked as infections spread.

Payroll data taken from small business accounting platform MYOB shows that in June, the number of workers taking sick or personal leave rose 35 percent on a seasonally adjusted average for the month. Victorians saw a 57 percent jump in sick days, while NSW was up 33 percent.

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MYOB Chief Employee Experience Officer Helen Lea said the situation could worsen.

“As COVID infections increase in the first week of July, and experts warn of a third wave, it’s possible we see furlough rates increase again in the coming weeks,” Lea said.

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