The global shift toward remote work has sparked debates on employee rights, workplace flexibility, and the balance between employer needs and employee well-being. In most countries, this has resulted in some form of national policies to allow employees to work remotely. In both Australia and New Zealand, the legal landscape of employment 

The fundamental principle governing workplace requirements is that employers can ask employees to return to the office if the direction is reasonable, lawful, and aligns with the terms of their contract. However, there are some important points in how these laws are implemented in these countries, particularly when it comes to dismissals or disputes over remote work requests.

Australia: A Clear Legal Framework for In-Office Work

In Australia, workplace policies surrounding remote work and in-office requirements are generally governed by the Fair Work Act. It provides a framework for minimum employment standards, modern awards, and enterprise agreements, governing the rights and obligations of employers and employees. 

Employers can legally require employees to return to the office under certain conditions, which include:

Reasonableness of the requirement: Employers must ensure that the direction for employees to return to the office is reasonable, considering factors like health, safety, and the nature of the work. For example, roles that require physical presence, such as those in healthcare or retail, would justify a return to the office, while remote roles may not.

Employment contract: If the requirement to work from the office is specified in the employee’s contract or job description, it is legally binding. Employers have the right to enforce this, as long as it is aligned with the agreed-upon terms.

Fair Work Act Compliance: Any direction to return to the office must also comply with the Fair Work Act 2009. This means employers must follow appropriate procedures and ensure that their actions are lawful. This includes adhering to anti-discrimination and unfair dismissal laws. Employers cannot use the requirement to work from the office as a  disguise for unfair dismissal (dismissal that is harsh, unjust, or unreasonable) or any form of discrimination.

The Middle Way

If all the above hold true and an employee refuses to return to the office without a valid reason, the employer may take disciplinary action. However, they must follow proper procedures, particularly if the employee has already completed their probationary period (no more than six months) and is therefore protected from unfair dismissal.

New Zealand: Balancing Flexibility & Employer Needs

New Zealand’s approach to employee rights and workplace flexibility places an emphasis on balancing employer requirements with employee entitlements. The Employment Relations Act 2000, primary legislation governing employment relationships, including those between employers and employees, gives employees the right to request flexible working arrangements, including remote work, and employers are legally obligated to consider these requests fairly.

Employers can require employees to return to the office under the following conditions.

Employment agreement: If the requirement to work from the office is specified in the employee’s employment agreement or job description, it is binding.

Reasonableness: The requirement must be reasonable, considering the nature of the work and personal circumstances. For example, it would be unreasonable to expect employees with documented medical conditions that prevent them from working in the office to return without a reasonable accommodation.

Clear communication: Employers must clearly communicate any requirements to return to the office, ensuring transparency and alignment with the terms of employment.

The Middle Way

While employees have the legal right to request flexible working arrangements, the employer can decline such a request if they can justify it on valid grounds. For instance, an employer might argue that in-office work is necessary for team collaboration or that remote work negatively impacts productivity. However, this refusal must be justified and supported by evidence.

If an employee refuses to return to the office and a mutual agreement cannot be reached, termination may be considered, but again, the employer must follow a fair process. This involves giving the employee an opportunity to respond to the situation and ensuring the decision to dismiss is substantively justified.

The Shared Importance of Fairness and Process

The employment process must be fair. In either Australia or New Zealand, if an employee refuses to return to the office and the issue is not resolved, termination could be an option, but only if the employer follows a fair process that includes:

Fair process for dismissal: Employers must ensure that they follow a fair and consistent process when making decisions about an employee’s dismissal. This includes notifying the employee of the issue, giving them an opportunity to respond, and ensuring that the dismissal is based on reasonable grounds.

Protection against unfair dismissal: Once an employee has completed their probationary period, they enjoy stronger job protections.

Health and safety considerations: Employers are legally required to consider the health and safety of employees, especially when making decisions about in-office work. Employees with valid health concerns, such as a documented disability or ongoing health condition, must be reasonably accommodated in a way that does not put them at risk.