Since Government measures to control the Covid 19 Pandemic were removed in 2022, more Employers have reorganized their work practices allowing workers to work from home.
Employers have introduced working from home policies or amended Employment Contracts allowing employees to work from home and in the office (otherwise known as Hybrid Work Arrangements).
Hybrid Work policies and practices have created expectations about working from home being a legal right. This month, the Fair Work Commission (FWC) will consider a working from home clause for most administrative workers or clerks under the Clerks Private Sector Award in February 2026,[1] The decision will provide employers and employees with valuable insight about similar clauses which may be introduced in other Awards covering workplaces where Hybrid Work Arrangements are prevalent.
However, without Award provisions covering Hybrid Work Arrangements or a statutory Flexible Work Arrangements made under the Fair Work Act, an employee’s “right” to work from home will often depend on a number of factors.
In the recent FWC case of Richard Johnson v PaperCut Software Pty Ltd decided on 19 January 2026[2], FWC examined whether an Employer (PaperCut Software Pty Ltd) (PaperCut) had a valid reason to terminate an Employer’s employment because he refused to return to the office when directed.
In Johnson’s case, the Employer’s right to discipline Mr Johnson for refusing to work in the office depended on whether they were able to provide him with a lawful and reasonable direction to do so..
The facts of the case were briefly as follows: –
- Mr Johnson commenced employment with PaperCut on 4 April 2022.
- Mr Johnson’s Employment Contract provided amongst other matters that he was “permitted to work from his personal residence”.
- PaperCut developed a Hybrid Work Policy following consultation with their staff, to transition employees to work three days in the office by January 2025.
- PaperCut tried unsuccessfully to vary Mr Johnsons’ contract to clarify that his place of employment included PaperCut’s office, in addition to his personal residence.
- When he did not agree to his contract being changed, PaperCut wrote to Mr Johnson stating that his primary work location would change from his personal residence to their offices. Mr Johnson objected and relied on legal advice that PaperCut’s direction was a breach of his Employment Contract.
- Mr Johnson was given an opportunity to discuss the direction. When he refused to attend the office, he was issued with a formal warning and provided with a further direction to work from the office. His employment was subsequently terminated when he did not attend work from the office.
Findings
The Commission found that –
- Mr Johnson’s Employment Contract only permitted him to work from home and did not provide a right to work from home. PaperCut’s direction was therefore lawful.
- PaperCut’s direction was reasonable because they took steps to develop a Hybrid Work Policy in consultation with their staff to transition them to new working arrangements after the pandemic. They also attempted to explain their position to Mr Johnson; had a sound basis to implement a change in their Hybrid Work Policy and did not act arbitrarily or capriciously when directing him to return to the office.
- Mr Johnson’s failure to comply with PaperCut’s lawful and respond to a direction constituted a valise reason for the termination of his employment.
Key Take Outs
- It is generally difficult for an Employee to argue that they have a right to work from home without a clear Agreement with their Employer (whether by way of a Flexible Work Arrangement under the Fair Work Act 2009 (Cth) or in their Employment Contract).
- Simply because Mr Johnson failed in his case to establish an unfair dismissal, does not mean that in other cases an employee cannot argue they have lawful right to work from home. For instance, they may have Flexible Working Arrangements in place or because of the Employer’s obligations under Anti- discrimination legislation which requires reasonable adjustments to be made to accommodate protected attributes like a disability or being a carer.
- It is prudent for an Employer to have clear Hybrid Work or Work from Home policies and Employment Contracts in place and consult their employees before implementing any changes to existing work arrangements. They should also have a valid basis for introducing any changes to Hybrid Work Arrangements.
If you are an Employee or Employer who are facing a similar situation, please call our office for advice regarding the circumstances of your case.
This article does not constitute nor should be taken as legal advice. If you require advice regarding the specific circumstances of your case, please contact our office to arrange a conference
[1] AM2024/34.
[2] [2026] FWC 178, per Commissioner Connolly.