Australia: WHS, Performance Management and Termination Considerations in the Context of Long Term Remote Working

As part of the Federal Government’s recently announced 3-stage plan in respect to easing restrictions associated with its response to COVID-19, the Federal Government has, at least for now, recommended that those workers who are able to work from home continue to do so.

With many employees continuing to work from home for at least the short to medium term in light of the continuing risks of COVID-19 and the potential for a ‘second wave’ of increased infections, employers need to remain vigilant in respect to their continuing obligations to workers notwithstanding that they are working from home, and must consider the new and unique workplace challenges that arise as a consequence of employees spending many months away from the physical office.

Below are just some of the considerations employers need to be alert to in the context of WHS and performance management and termination in this brave new world.

WHS Obligations

It is trite to say that WHS obligations continue to apply even when an employee works from home or remotely.

The primary duty under WHS legislation is to ensure, as far as practicable, the health and safety of all workers and extends to the elimination of risk to health and safety, and, if not reasonably practicable to eliminate same, the minimisation of risk to health safety.

This duty extends to employers ensuring that the home workspace is fit for purpose, and potential risks to health and safety in the home workspace are identified and managed to the extent reasonably possible. In that regard, employers should consider the following non-exhaustive matters:

• Do employees have the necessary equipment to undertake their duties safely (including but not limited to a stable workspace, non-faulty computer equipment, ergonomic furniture and the like)?
• Are there any hazards in the home workspace e.g. broken wires, flimsy furniture, not enough light?
• Is there a mechanism for employees to report health and safety issues that arise in the remote workspace like they could at work?
• Do employees have adequate cleaning supplies to prevent the risk of catching COVID-19 while working from home?

An employer’s WHS duty also extends to monitoring and managing employee mental health. This is particularly important in the context of the COVID-19 pandemic, when employees have far more limited contact with others, both in a professional and personal context. Employers should take a proactive approach, including by regularly checking in with employees, erring on the side of overcommunicating, providing access to information on and support for mental health issues, supporting work life balance, ensuring regular breaks, setting clear expectations in terms of output/milestones and hours of work, and ensuring employees have adequate support and a point of contact if they experience difficulties with their work performance.

Failure by employers to be properly alert to the unique WHS risks that arise in the context of remote working may result in significant legal exposure and business down time.

Performance Management and Termination of Employment

Where an employee is not performing to the standard required, employers are entitled to implement a performance management process, notwithstanding that employees have been working remotely and may continue to work remotely for some time.

It is, however, important to have regard to any barriers to performance that have arisen as a result of the need to work remotely, and any other mitigating factors caused by the COVID-19 pandemic. For example, has performance output slowed:

• because of an employee’s reliance on their home internet and computer devices, which may not be as fast or up to date as the office equivalents;
• due to difficulty contacting relevant persons;
• because an employee has had to manage concurrent caring responsibilities; and/or
• because of mental health issues that have been exacerbated by the pandemic?

Failure to have regard to such matters may result in issues for employers down the track, when they seek to rely on such performance issues to justify dismissal.

Where it is or may be necessary to terminate employees who are working remotely, employers should proceed with caution and ensure that procedural fairness continues to be adhered to, to the extent reasonably practicable, to avoid the FWC finding that any dismissal was harsh, unjust or unreasonable due to procedural failures. This includes providing adequate warnings and notice and giving reasonable opportunities to improve performance and respond, as would be the case if an employee was not working remotely. In relation to meetings with concerned employees as part of the performance management and termination process, while this may be a procedural challenge in the context of the pandemic, employers should, to the extent possible, attempt to replicate a  face-to-face environment, such as through videoconferencing facilities, if it is not possible to hold meetings in person.

Ultimately, employers should continue to adhere to their statutory and common law obligations in relation to implementing performance management and termination processes, to the extent reasonably practicable in the context of the COVID-19 pandemic. To the extent it is not reasonably practicable to do so, employers should attempt to replicate existing processes as much as possible, while maintaining an overarching focus on ensuring procedural fairness.

Author: Amy Zhang

Harmers Workplace Lawyers has a team of employment law specialists readily available to assist you with these and other workplace issues. For more information, please visit www.harmers.com.au.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.