On April 7, 2022, the Fair Work Commission issued a decision  against the Australian National Audit Office (‘ANAO’) for unfair dismissal. ANAO revoked former civil servant’s permission to work from home, despite facing ‘increased risk’ of COVID-19 and caring for her dying uncle at his second residence, then terminated his employment after returning to the office for 6 weeks.
Circumstances of the case
The Fair Work Commission has found that the dismissal of a 64-year-old public servant at “increased risk” of COVID-19 and the next of kin designated to care for her terminally ill uncle was unfair. Ms Cully, an ANAO employee for 22 years and a Commonwealth civil servant for 33 years, was terminated for failure to perform her duties under the Commonwealth Civil Service Act.
The ANAO had approved Ms Cully’s request to work from home until the end of 2020, after providing a medical certificate declaring her “at increased risk of complications from COVID-19”, and so that she could s care for his terminally ill uncle at their home in Woolgoolga – 850 kilometers from the Canberra-based office. ANAO approved the arrangement as long as performance was maintained and it attended fieldwork and meetings in person as required, and participated in a monthly review.
In September 2020, the ANAO unilaterally revoked the approval, based on “continued requests for leave and the resulting lack of work”, and stating that it had no “audit work available which would be appropriate [at her level] which can be completed entirely remotely.
The ANAO told Ms Cully that she had exhausted all other forms of leave and that the long periods of leave had prevented her from fulfilling the requirements of her role to the appropriate standard.
Ms Cully was asked to return to work in Canberra in October 2020, despite her own medical advice suggesting otherwise.
Her uncle was referred to palliative care at home in November 2020. She told ANAO he was catheterized, unable to walk and confined to a bed. Ms Cully again applied for leave, but the ANAO rejected it saying he was not an immediate family member within the meaning of the Fair Work Act’s personal/caregiver leave provisions . She did not report to work and ultimately the ANAO issued an instruction, which they said was legal and reasonable, for Ms Cully to return to the Canberra offices.
Mrs. Cully provides a medical certificate stating that she is taking leave until February 28, 2021. She then requests that she be assigned a job that she will perform remotely to continue caring for her uncle. The ANAO issued a second direction for her to return to the office, before issuing a notice of intent to terminate her employment due to non-performance of her duties.
Ms Cully returned to the office on March 27, 2021. She requested furlough leave which was denied. She continued to work in the office. Ms Cully’s uncle died on April 7, 2021 and her employment was terminated on June 2, 2021.
Decision and reasoning
Vice President Dean concluded that there was no just cause for Ms. Cully’s dismissal. ANAO made it clear that the reason for their dismissal was failure to perform their duties rather than unsatisfactory performance.
The Board found that the instructions given to Ms. Cully to return to the office were legal, but unreasonable, due to the unique circumstances.
The ANAO’s disregard for Ms Cully’s situation, including her high risk of COVID and her caring responsibilities to a family member who had been sent home in her care, was evident during cross-examination. of the management of ANAO. Ms Cully, who has represented herself, asked the director whether an instruction could ever be legal and reasonable “if there is a material risk that it will result in death – in the suffering and/or death of a human being ?” The director replied “potentially, yes”, and that it could be a consequence “because life isn’t fair and sometimes bad things happen”.
ANAO’s view that Ms Cully was not a carer because her uncle was not a member of her household or immediate family was dismissed. There was clear evidence that Ms Cully had been residing with her uncle since 2016 and that the ANAO had been informed of her residence at the Woolgoolga home since the start of 2020. Vice President Dean observed that there was no was no evidence that an employee of the ANAO could not have two residences.
Medical certificates provided showed Ms Cully was responsible for her uncle’s care when he was not in hospital, as she was his next of kin. Vice President Dean said ANAO was only able to deny the request for flexible work arrangements for reasonable business reasons, which did not exist in the circumstances.
Further, Vice President Dean said that while the instructions were in fact reasonable, the dismissal was nevertheless unfair because Ms. Cully had returned to the office and performed her duties for more than six weeks in the office as directed by the office. ‘ANAO.
Ms Cully was reinstated and the ANAO was ordered to return any lost wages.
Key points to remember
This case is quite unique and provides useful guidance to employers, in particular that employers should consider the broader circumstances impacting individual employees, rather than applying guidelines in a completely inflexible manner.
Vice President Dean noted that usually failure to follow employer directives to come to the workplace would like to be cause for dismissal, but Ms. Cully’s situation was unique. The injustice in this case was compounded by the fact that the ANAO appeared to be completely unaware of the difficult circumstances Ms Cully faced. Ms. Cully was entitled under the Fair Work Act to request flexible working arrangements, which could only be refused for reasonable business reasons.
This case reminds employers that what is reasonable will depend very much on individual circumstances. When the underlying facts were different and the reason for wanting to continue working from home wasn’t so compelling, the outcome could have been very different.
Arranging for staff to start returning to work from the office can be fraught with challenges, and if something goes wrong, specific advice is needed. Piper Alderman’s Labor Relations team can help your organization manage the transition to a more structured work environment.