Can employers force their employees to relocate?

21 JUN 2022

 

The Fair Work Commission has recently heard a dispute between an employee and his employer in which allegations were made by the employee that he had been unfairly dismissed for failing to relocate when required by the employer. 

This dispute serves as a timely reminder to employers to remain mindful when requiring relocation during the course of an employee’s employment. 

Summary of the Case

The employer was an oil and gas production company located off the coast of Western Australia. The employee, Mr Prinsloo, was employed as a General Service Operator, on a fly in fly out basis. 

However, in March 2022, when Western Australia introduced travel restrictions due to the COVID-19 pandemic, the employer directed its employees, including Mr Prinsloo, to immediately relocate to Western Australia. However, Mr Prinsloo was considered an exempt traveler, and as such, relocation was not necessary. 

In November 2020, as a result of the Western Australian Government introducing a two week quarantine requirement for interstate travelers, the employer altered its roster to allow for their employees to undertake quarantine. 

In late June 2021, the Western Australian Government reclassified Queensland as a ‘low risk’ jurisdiction, meaning that all arrivals from Queensland were required to quarantine for two weeks. This meant that Mr Prinsloo was required to leave for Western Australia earlier than expected in order to allow him to complete his two weeks quarantine. However, due to medical reasons, and further changes in the Western Australian Government’s classification, Mr Prinsloo was not able to enter Western Australia to start his quarantine period. Although he did later obtain an entry pass, he was unable to commence his rostered shift, on account of having to complete his quarantine. 

The employer then sent a letter to Mr Prinsloo informing him of its intention to terminate his employment as the employer believed that Mr Prinsloo had breached his contractual obligations by not being able to enter Western Australia when required. The employer later argued that the employment contract had been abandoned because Mr Prinsloo was not able to commence his rostered shift. 

Outcome of the Case 

The Commission was required to determine whether Mr Prinsloo was unfairly dismissed.

The Commission held that Mr Prinsloo’s conduct did not indicate that he intended to abandon or renunciate his employment contract and rather, he had taken the necessary steps to be able to enter Western Australia and attend his shifts. 

Therefore, the Commission found that the employer had no valid reason to dismiss Mr Prinsloo from his employment. Further, the Commission found that Mr Prinsloo was not properly notified of his employment termination, nor was he allowed adequate time to respond to the proposal to terminate his employment. 

The employer was subsequently ordered to reinstate Mr Prinsloo’s employment and restore his lost pay.

What does this case mean for employers? 

There are a number of key takeaways from this case for employers. 

Whilst the facts giving rise to this case are quite unique, in that they occurred during the height of the COVID-19 pandemic, employers should remain mindful that when asking their employees to relocate, proper and adequate notice must be given and the employee must be given sufficient time to respond. When it is necessary to have an employee relocate, employers should ensure that the provisions of the employment contract allow for such a requirement to be made. 

How can Marsdens help you?

If you are an employer seeking to have your employees relocate, obtaining specialist legal advice is important so that you can properly comply with your legal obligations. 

If you need advice regarding your obligations and rights in respect of requiring an employee to relocate, please contact Aaran Johnson or Simon Kumar on (02) 4626 5077 to discuss how we can assist you. 

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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