Getting your staff back in the office - reasonably

Edge Legal

13 March 2024

FWC recently found (Charles Gregory Gregory v Maxxia Pty Ltd [2023] FWC 2768) an advisor with an inflammatory bowel disease (IBD) and custody pressures was unable to utilise the flexible work provisions to resist his employers request to return to the office 40% of the time in accordance with its Hybrid Work Policy.

FWC found “reasonable business grounds” to reject the employee request particularly because their position required the employer to support him, which could not be done as successfully when WFH. Significantly, the employer was able to provide evidence which showed an obligation for the employee to meet productivity quotas of 85% - the employee was only achieving about 50% at the time of making the application.

Our Thoughts

Much has been made of this case by various commentators. It seems that workplaces now either ‘love’ or ‘hate’ the new post COVID WFH revolution.

Our take is a bit simpler.

We think this issue just comes down to actually capturing, monitoring and managing the output of your employees. Relying on “but I called them and they didn’t pick up the phone” or “they always respond to emails on their phone” is not really a genuine reason why WFH isn’t working. Demonstrating a failure to meet productivity outcomes (like the employer did above) does provide a legitimate justification why working in the office under direct supervision is required. Backing it up with a good policy provides further expectation setting and increases the likelihood of achieving a reasonable business ground ‘defence’.

Action Items:

  • Establish through consultation clear performance outcomes/ expectations with your employees (which can involve face to face collaboration with workmates)

  • Express those performance outcomes/ expectations in a Hybrid Work Policy

  • Train your managers to regularly manage performance outcomes/ expectations – regular one on one meetings are best

  • Enforce your policy based on genuine performance outcomes/expectations rather than nebulous justifications like “we need to see people in the office”


Edge Legal
Relationships. Respect. Results

Sign up for our 'Tips & Trends' Articles

You will get short, relevant articles on topical areas with actionable steps and real commentary

We care about the protection of your data. Read our Privacy Policy.