An employee who refused to work from his employer’s office has failed in his bid to overturn his dismissal. An expert says the ruling offers multiple lessons for HR.

A recent case before the FWC involved a Melbourne-based print software company and a product engineer who claimed he had been unfairly dismissed after refusing to comply with the company’s return-to-office directive.

The FWC found in favour of the employer, concluding that the decision to fire the employee was not harsh, unjust or unreasonable. 

“The ruling should give employers confidence to make reasonable changes to established work-from-home arrangements,” says employment lawyer Will Snow, director at Snow Legal.

The decision is notable because the employee’s original contract stated he was permitted to work from home and did not identify the company’s office as a primary workplace.

However, the finding doesn’t give employers carte blanche to demand employees return to the office, says Snow. Rather, it underlines the importance of consultation and due process.

The facts of the case

The employee commenced his role in April 2022, when Victoria was emerging from the COVID-19 pandemic. His contract:

• Did not specify a primary place of work;
• Permitted him to work from home “in line with relevant policy” and listed his home address;
• Stated that he “may be required to work at other locations from time to time”; and
• Stated that he must “comply with such reasonable and lawful directions and all policies, rules and regulations from time to time provided by [the employer].”

In August 2023, after staff consultation and trials, the employer enacted a ‘return to hybrid work’ policy, with the stated aim of bringing employees into the office three days per week by 2025.

In December 2024, the employer notified the employee that his primary work location was being updated to the company’s office, effective 1 January 2025. The employee indicated that he would not comply with the change.

In the months that followed:

• The employer warned that not complying with the return-to-office policy “may result in disciplinary action”;
• The employee sought legal advice and took the position that his employer’s directive was a breach of contract; and
• The employee declined to provide any personal reason why he should continue to work solely from home and did not request a flexible working arrangement.

In May 2025, the employer issued a final warning letter to the employee, noting that he would face action “up to and including the termination of his employment” if he did not start working from the office. The employee maintained his position.

Then, in June 2025, the employee was fired. 

In his submission to the FWC, the employee argued that his firing was “disproportionate and harsh” given his employer had not raised any other issues with his employment.

In response, the employer argued that the employee had “ample time and opportunity” to comply with its directive and had been warned “in clear and explicit terms” that his contract could be terminated.

What was the case really about?

The FWC considered three significant questions in order to arrive at its verdict:

1. Did the employee’s original contract guarantee him work-from-home status?

The employee argued that, because his original contract did not list a “primary place of work”, he could not be compelled to work primarily from the company’s office.

But the FWC found the omission to be a mistake that could be updated as per the change clause in the contract.

“The FWC is saying: ‘We don’t accept that what looks to be an error or oversight in your contract should be the last word on where your work gets done,’” says Snow.

2. Was the employer’s request reasonable?

The FWC noted that in February 2022 the Victorian Government had removed its strong recommendation for employees to work from home. 

It also noted that the employer repeatedly asked the employee to comply with its new policy.

“The finding states that the change to his work arrangements was reasonable and allowed under his contract,” says Snow.

“The Commission is ultimately saying that the employer here should be able to make the call as to where and when work gets performed.”

3. Did the employee make a compelling case for working from home?

A legal framework for flexible work requests currently exists under section 65 of the Fair Work Act, allowing employees to argue for work-from-home arrangements under certain circumstances, such as caring for children or family members or living with a disability.

In a recent FWC case, a Westpac employee successfully challenged her employer’s office attendance policy after formally requesting flexible working arrangements to care for her children.

“But this unfair dismissal claim had nothing to do with the employee’s personal circumstances,” says Snow. “He simply said: ‘My contract says I can work from home, I’ve got my own legal advice about that and I’m going to hold you to it.’”

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What can HR learn from this case?

Snow points out that, despite being resoundingly rebuffed by the FWC, the employee originally received legal advice that suggested he had a case to make. 

To avoid a situation like this, HR should consider the following when drafting employment contracts:

1. Identify a principal place of work.

The employee’s contract did not list a physical address as his principal place of work, creating an opening for the FWC action to proceed.

“The problem here arose because the contract said the employee was permitted to work from their personal residence and didn’t specify a primary place of work,” says Snow.

In addition to listing a primary work address, Snow recommends pre-emptively flagging possible changes of address.

“You want to have a clause that says: ‘Your principal place of work is X, but we may change this from time to time, in accordance with business needs and after consultation with you.’”

2. Make your expectations clear and specific.

Employees should understand from the outset of their employment what is expected of them in terms of visibility and availability during normal office hours, says Snow. That extends beyond simply working from the main office for a certain amount of time.

“I’ve seen examples where people working from home have refused to attend client meetings because at 2pm they see their personal trainer. Setting parameters is crucial.”

3. Maintain communication with employees during disputes.

The employer in the case gave the employee more than a year to adjust his work whereabouts or lodge a request for flexible working conditions, and provided ample warning that his refusal to comply could result in termination.

“They consulted with him quite a lot over an extended period of time, which made the difference,” says Snow.

The meaning of ‘fair’

In its ruling, the FWC found it reasonable that employers would want their employees to spend a certain amount of time at the office each week in a post-pandemic world.

It also found that the employer was able to make a significant change to the employee’s working conditions, despite initially providing an incomplete contract.

Both these findings are underpinned by the employer’s behaviour towards its employees: trialling a change in working conditions, then giving employees more than a year to adjust, then consulting repeatedly with the claimant when he failed to comply.

When the facts of the case were laid out, the employer was able to satisfy the FWC that it had acted fairly and in good faith. It’s a reminder that communicating clearly with employees on issues big and small is always a good idea. 

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