Remote and hybrid work is now a permanent feature of Australian workplaces. With it comes a recurring question for employers: is it any harder, or any different, to dismiss someone who works from home? The short answer is that a remote employee is not in a separate legal category. If the worker is an employee, they keep the same core protections as anyone based in the office — the Fair Work Act 2009 (Cth), any applicable award or enterprise agreement, anti-discrimination laws, workplace-rights protections, and the terms of their contract all continue to apply.
What changes is the risk profile and the practical process. Remote terminations raise additional issues around flexible-work requests, return-to-office directions, conducting a fair process online, and managing IT access and company property. This guide sets out, step by step, what an employer should do before terminating a remote employee to reduce the risk of an unfair dismissal, general protections, discrimination, redundancy or unpaid-entitlements claim.
Can an employer terminate a remote employee in Australia?
Yes. An employer can lawfully terminate a remote employee — but only in accordance with the Fair Work Act, any applicable contract, modern award or enterprise agreement, and general employment law obligations. The fact that an employee works from home does not reduce their statutory protections, and it does not change the basic legal test for a lawful dismissal.
Before turning to that test, two threshold questions matter. The first is whether the worker is actually an employee or an independent contractor, because classification determines which protections apply. The second is whether the worker is covered by the national workplace relations system. Once employee status and coverage are confirmed, the analysis proceeds exactly as it would for any office-based employee.
In Australia, then, a remote employee remains protected by the Fair Work Act 2009 (Cth), applicable awards or enterprise agreements, anti-discrimination laws, workplace-rights protections and the terms of their employment contract. Working from home neither adds to nor subtracts from those core entitlements.
Check the employment contract, award or enterprise agreement
Employers should not assume the Fair Work Act is the only source of their obligations. Before terminating a remote employee, check whether a modern award, enterprise agreement, employment contract or workplace policy imposes additional requirements — because, very often, it does.
In particular:
- Modern awards and enterprise agreements may contain consultation obligations that must be followed before a redundancy or major change.
- Those instruments may also affect redundancy, notice, procedural fairness and payment obligations.
- The employment contract may set a longer notice period than the statutory minimum, which then governs.
- The remote-work arrangement itself may be contractual (a guaranteed right) or merely discretionary (a concession the employer can withdraw). This distinction is fundamental and is revisited below.
The practical point is simple: a modern award, enterprise agreement or contract may require additional notice, consultation, disciplinary steps or redundancy procedures over and above the Act. Identifying the applicable instruments at the outset avoids a procedurally defective dismissal.
Identify the lawful reason for termination
The employer needs a legitimate reason for the dismissal and should be able to evidence it. Lawful termination of a remote employee will usually fall into one of the following categories, each of which carries its own key question:
- Poor performance. Has the employee been told about the concerns and given a genuine chance to improve?
- Misconduct. Has the employer investigated and put the allegations to the employee for response?
- Serious misconduct. Is the conduct serious enough to justify summary (immediate) dismissal?
- Redundancy. Is the role genuinely no longer required to be performed by anyone?
- Incapacity. Is there medical or other evidence showing an inability to perform the role?
- Refusal to return to office. Was the direction to return lawful and reasonable in the circumstances?
In short, the employer should be clear about the reason before the dismissal occurs — whether performance, misconduct, serious misconduct, redundancy, incapacity or refusal to comply with a lawful and reasonable direction — and should be able to point to evidence supporting it.
Follow procedural fairness — even if the meeting is remote
A valid reason is not enough on its own. Even where there is a sound reason for dismissal, the termination can still be unfair if the employee was denied procedural fairness. Under s 387 of the Fair Work Act, the Fair Work Commission must take into account whether the employee was notified of the reason for dismissal and given a genuine opportunity to respond before the decision was made. A failure to afford procedural fairness can render a dismissal harsh, unjust or unreasonable even where a valid reason exists.
At a minimum, the employer should:
- Tell the employee the reason for the possible dismissal, clearly and specifically.
- Give them a genuine opportunity to respond before any decision is made.
- Not predetermine the outcome — the decision must remain genuinely open.
- Allow a support person where appropriate.
- Keep proper records of the process and the decision.
- Where the meeting is by video or phone, ensure the employee can properly hear, understand and participate.
The case law reinforces these requirements. In Crozier v Australian Industrial Relations Commission, the court confirmed that a valid reason must be “sound, defensible and well-founded”, and that procedural fairness requires the employee to be notified of the reason and given an opportunity to respond. In Gibson v Bosmac Pty Ltd, and similarly in Liddell v Lembke, the emphasis was again on notification of the reason and a real opportunity to respond. And in Boyd v SPI PowerNet Pty Ltd, the Commission applied the s 387 criteria and reinforced that a lack of procedural fairness can make a dismissal unfair.
For remote employees, procedural fairness should be adapted to the online setting, not abandoned. A videoconference meeting may be perfectly appropriate, but the employee should still understand the allegations or reasons, have a genuine opportunity to respond, and be able to have a support person present if relevant.
Be careful where remote work is connected to a protected matter
The highest-risk remote terminations are often not really about remote work at all. They arise where the remote arrangement is connected to a protected matter — disability, illness, injury, pregnancy, carer or parenting responsibilities, or family violence. In those situations, a dismissal can attract general protections (adverse action) and discrimination claims in addition to unfair dismissal.
Employers should keep several points in mind:
- A request to work remotely may itself be the exercise of a workplace right, or may engage discrimination law.
- Remote work may have been sought, or granted, as a reasonable adjustment for a disability or medical condition.
- A return-to-office direction may be challenged if it ignores a protected attribute or a person’s individual circumstances.
- Where remote work is connected to carer or parenting duties, statutory flexible-work rights and limits may apply.
Where the remote arrangement is linked to disability or carer responsibilities, the employer must properly assess whether refusing remote work — or dismissing the employee — could amount to adverse action or unlawful discrimination. Considering the employee’s individual circumstances, and documenting that consideration, is an important risk-management step.
Can an employer require a remote employee to return to the office?
Sometimes yes — but any direction to return to the workplace must be lawful and reasonable. There is no automatic right to work from home in every role; equally, there is no unlimited right for an employer to compel attendance regardless of the circumstances. The answer depends on the contract, any applicable industrial instrument, workplace policies, approved flexible-work arrangements, and the reason remote work is being sought.
Before issuing a return-to-office direction, an employer should:
- Check the employment contract and whether remote work is a contractual right or a discretionary arrangement.
- Check any applicable award or enterprise agreement and workplace policies.
- Consider any approved flexible working arrangement.
- Consider discrimination, work health and safety (WHS) obligations and the employee’s individual circumstances.
Recent authority supports this position. In Papaemanouil v Special Broadcasting Service Corporation, the court confirmed there is no generalised right to work from home unless that right derives from a legislative or contractual source. And in Huxhagen v AWP Australia Pty Ltd (t/as Allianz Partners), the refusal of an employee’s request for a 100% work-from-home arrangement was upheld where the employer had genuine operational and business grounds, and the arrangement was not contractually guaranteed.
If an employee refuses a lawful and reasonable return-to-office direction, dismissal may be possible — but only where the direction was genuinely lawful and reasonable and the disciplinary process that followed was fair.
If the termination is a redundancy, satisfy the genuine redundancy test
Where a remote employee is being terminated because the role is no longer required, the employer must satisfy the genuine redundancy requirements. Under s 389 of the Fair Work Act, a dismissal is not a genuine redundancy unless the job is no longer required to be performed by anyone because of operational changes, the employer has complied with any consultation obligations in an award or enterprise agreement, and it would not have been reasonable to redeploy the employee within the business (or an associated entity).
Three points deserve attention:
- The job must no longer be required to be performed by anyone — not merely reshuffled or relabelled.
- Consultation obligations under any applicable award or enterprise agreement must be complied with.
- Redeployment must be genuinely considered, and for remote roles this may include suitable vacancies that can be performed remotely.
The redeployment analysis is well established. In Ulan Coal Mines Ltd v Honeysett (and the related Murray v Ulan Coal Mines Ltd), the Full Bench confirmed that redeployment into a suitable position must be considered as an alternative to dismissal. In Bradley v United Petroleum Transport Pty Ltd, the reasonableness of redeployment was assessed at the time of dismissal, having regard to factors such as available positions, required qualifications, the employee’s skills and experience, location and remuneration. And in Burneikis v NGS Super Pty Ltd, the Commission accepted that an employer need not create a new role or assemble duties artificially, but should consider suitable existing vacancies.
No case specifically requires consideration of remote work in redeployment. But where the business has suitable vacancies that can be performed remotely, the general redeployment reasoning may apply by analogy. For remote employees, redeployment should therefore not be approached too narrowly: suitable roles that could be done from home may need to be considered before the dismissal can safely be characterised as a genuine redundancy.
Give proper notice and pay final entitlements
A remote termination is not complete simply because system access has been switched off. The employer must give written notice (or payment in lieu) and ensure all final entitlements are paid. Section 117 of the Fair Work Act requires written notice of termination, and sets the following minimum notice periods based on the employee’s continuous service:
- 1 week — for up to 1 year of service;
- 2 weeks — for more than 1 year and up to 3 years;
- 3 weeks — for more than 3 years and up to 5 years;
- 4 weeks — for more than 5 years;
- plus 1 additional week where the employee is over 45 and has at least 2 years’ continuous service.
Where the employer pays in lieu of notice, the payment must be at least what the employee would have earned at their full rate of pay over the notice period. Final payments may also include accrued but unused annual leave, redundancy pay under s 119 where applicable, long service leave under the relevant state or territory legislation, and any commissions, bonuses or reimbursements owing. The applicable award, enterprise agreement and contract should always be checked, as they may be more generous than the statutory floor.
The courts treat these obligations seriously. In Melbourne Stadiums Ltd v Sautner, the court confirmed that payment in lieu of notice must be made at the time of termination, and that a failure to do so may contravene the Act. Similarly, in Fair Work Ombudsman v AJR Nominees Pty Ltd, a failure to pay notice in lieu was found to breach the Act and attract penalties.
In other words, the employer still needs to give written notice or pay in lieu, and ensure all final entitlements are paid in accordance with the Fair Work Act, any applicable award or enterprise agreement, the contract, and state or territory long service leave laws — regardless of how or where the employee worked.
Manage the practical remote exit process
Remote terminations require careful handling of the meeting itself, IT access, company property, confidential information and WHS issues. Getting the logistics right protects both the integrity of the process and the business.
The termination meeting
A meeting by video or phone may be appropriate, but it should be handled with the same care as an in-person meeting. The employer should:
- Preserve confidentiality — ensure the conversation cannot be overheard or recorded inappropriately.
- Allow the employee to participate properly, with a stable connection and time to absorb what is said.
- Allow a support person to attend where appropriate.
- Follow up in writing with a clear termination letter confirming the decision and entitlements.
IT access and company property
Prompt and coordinated handling of access and equipment is essential. The employer should:
- Arrange recovery of laptops, phones, documents and any other company property.
- Disable access to email, internal systems and cloud storage at an appropriate time.
- Remind the employee of their continuing confidentiality and intellectual property obligations, which survive termination.
- Take care not to destroy evidence or the employee’s genuinely personal material in the process.
- Coordinate HR and IT so that timing is consistent with a fair process.
Work health and safety
WHS duties extend to remote work locations, including home workspaces, and an employer must ensure health and safety so far as is reasonably practicable. While WHS should not dominate a termination, it can create risk where a workplace injury, illness or safety complaint is connected to the dismissal — so it is worth checking whether any such issue is in play before proceeding.
Employer checklist
Before terminating a remote employee, employers should work through the following steps:
- Confirm the worker is an employee and identify the applicable contract, award or enterprise agreement.
- Confirm the reason for termination and ensure it can be evidenced.
- Check whether unfair dismissal protections apply.
- Check whether the employee has made any flexible-work request, complaint, leave request, WHS complaint or discrimination-related request.
- If performance or misconduct is involved, put the concerns to the employee and allow a genuine response.
- If redundancy is involved, consult where required and properly consider redeployment, including suitable remote roles.
- Calculate notice, payment in lieu, accrued leave, redundancy pay and any other entitlements.
- Prepare a clear written termination letter.
- Conduct the meeting fairly, even if by video or phone, and allow a support person where appropriate.
- Arrange return of company property and disable access at an appropriate time.
- Confirm the employee’s continuing confidentiality and IP obligations.
- Keep records of the decision and the process.
Conclusion
Remote employees are not easier to terminate, and they are not in a separate legal category. They require the same legal process as any other employee — a valid reason, procedural fairness, proper notice and payment of final entitlements — plus extra care around flexible-work requests, return-to-office directions, conducting a fair process online, and managing IT access and company property. Remote work does not change the core law; it changes the risk profile and the practical process. Employers who recognise that distinction, and plan accordingly, are far less likely to face a costly claim.
This article provides general information only and is not legal advice. The right approach depends on the facts of each matter. If you are considering terminating a remote employee, OpenLegal can advise on the specific contract, award and Fair Work Act obligations that apply to your situation.
