The following information is based on a published decision in an unfair dismissal case which was heard in the Fair Work Commission.  The employer and employee are not named to protect their privacy.   

The employee was a member of the employer’s online services team and his duties involved publishing content to the employer’s social media channels. The employee had Autism Spectrum Disorder but there was no suggestion that this formed a barrier to his work performance.

In 2017 the employee was said to have been suffering from anxiety and depression, following medical advice from his treating doctor his work area was moved to a different area of the organisation. 

In March 2020 the employee sent an email to the Organisational Health Unit and his Team Leader attaching a letter from his psychologist requesting that he be provided with alternative seating, ideally further away from people facing a window where a minimum of people need to walk past.  This was requested in order to reduce sensory overload and the expectation that the employee engage in social interaction. 

The psychologist stated that if the seating was not available then arrangements could be made for the employee to work from home. 

Shortly after the letter was sent, the employee began working from home due to the Covid Lockdowns.  He continued to work from home until he commenced a period of personal leave on 10 August 2021

On his return to work in January 2021 the employee continued to work from home without approval – The employer made multiple attempts between January and March 2021 to contact the employee, requesting that the employee attend the office and engage with a workplace rehabilitation provider.

The employee did not reply to the employer's requests to return to office, and failed to return calls and emails

On 29 March 2021 the employer wrote to the employee to issue a formal direction to attend work, advising that a failure to comply with the direction could result in disciplinary action up to and including termination

Despite the formal direction, the employee did not attend the office and continued to work from home.  An email exchange between the employee and the employer followed, wherein the employer alerted the employee to the breach of the direction and again attempted to direct the employee to attend the office

After repeating the direction, but still not receiving a response, the employer sent a letter to the employee advising that the employer was considering terminating the employee's employment on the basis that he had continually failed to comply with the lawful direction which required him to physically attend the office.

On 13 May 2021 the employee responded, arguing that he had a lawful right to work from home due to his disability – attached to his response was a medical certificate attesting to his condition and advocating work from home.

On 25 May 2021 the employer issued a notice of termination for failure to comply with a lawful direction.

In the Fair Work Commission the employee argued he had a legal entitlement to flexible work due to his disabilities such that any directions to attend the office, and any termination for failure to do so, were unlawful – the employer contended the directions were lawful and reasonable.

The Commission observed it was well established that a failure to follow a lawful and reasonable direction may constitute a valid reason for dismissal.

The Commission held the employer's directions were lawful and reasonable and noted ten occasions when the employee failed to comply with a direction.   The Commission concluded that the employee's refusal to attend the workplace amounted to a refusal to comply with a lawful and reasonable direction and constituted a valid reason for his dismissal

The Commission concluded the termination was not harsh, unjust or unreasonable and the application was dismissed.