FWC awards $26,000 in compensation to employee dismissed over working from home

The Fair Work Commission (FWC) has ordered an Australian company to pay a former employee more than $26,000 in compensation after the Commissioner found he was unfairly dismissed for working from home full-time.

Tomaso Moro, a sales rep who worked for e-commerce support firm Insider AU, brought the case to the FWC following the termination of his employment at the company last year.

Moro was dismissed by his regional director, Tunc Bolluk, for his supposed “lack of commitment” to Insider AU, on the grounds that he would work from home every day, even on Mondays and Wednesdays, which were mandatory in-office days for the company.

His dismissal was triggered by an incident on August 30 last year – a mandatory in-office day. That morning, he updated his work calendar indicating he would be working from home, as a tradesperson was coming to his house to fix his dishwasher.

Later, Bolluk texted Moro, indicating he did not believe Moro was telling the truth.

“Sorry Tom, I’m calling BS on this,” Bolluk wrote in a text message.

“This is not good enough – you are supposed to give us a heads up WAY in advance as opposed to having me chase you like this.”

According to the evidence, Bolluk allegedly told Moro the following day: “You clearly don’t want to come into the office. It is best to part ways”.

He was sacked the following day and received two weeks’ pay in lieu of notice.

Moro brought the case to the FWC, arguing he was unfairly dismissed, despite being the top sales performer in the company. Moro also cited a previous interaction earlier in 2023 with Bolluk, where he considered resigning from his role to travel, but in the end, decided to stay with the company.

Meanwhile, Bolluk, on behalf of Insider AU, maintained it was a mutual decision for Moro’s termination, as his “commitment to the role was lacking, leading to a decision to proceed with termination”.

By the end of the hearing, Commissioner Donna McKenna sided with Moro and ruled that his dismissal was “predetermined, harsh, unfair and unreasonable”.

“I am not satisfied that the applicant’s conduct in not attending the office and, instead, working from home on August 30, 2023, constituted a valid reason for dismissal,” Commissioner McKenna told the FWC.

“I also consider that the irritant of the applicant’s unilateral advice that he would again be working from home on August 30, 2023, being an in-office day, was the trigger for the dismissal against the backdrop of the previous exchanges about resignation and/or Mr Bolluk’s understanding that the employment relationship was, in any event, going to conclude by resignation at some point into the future.”

Commissioner McKenna ordered Insider AU to give Moro three months’ pay in compensation at $2208 a week. On top of bonuses, this equates to $26,496.

To WFH, or not to WFH?

Working from home has been a point of contention as the Australian workforce continues to rebuild following the COVID-19 pandemic, which rocked the national and global economy.

According to recent research from the online job site Seek, flexible working conditions will likely remain part of the norm, at least for the near future.

However, about two-thirds of CEOs in Australia see all white-collar workers returning to the office full-time in the next three years, the KPMG 2023 CEO Outlook survey found.

Cases relating to unfair dismissals for working from home are being brought to the FWC more and more frequently.

In November last year, the Commission denied a request from an employee at Maxxia, Charles Gregory, to work from home full-time. The FWC found the company’s guidelines to have staff in the office 40% of the time was not unreasonable, despite Gregory’s health condition and his responsibility as a carer.

This article was first published by Women’s Agenda.