Employee Working Overseas Without Approval? Basis to Dismiss?
The Fair Work Commission’s decision in Charles Graham v HIFX Australia Pty Ltd [2026] FWC 720, serves as an important reminder for employers managing remote and hybrid workforces.
The Commission confirmed that employers are entitled to control where employees perform their work and may have sound legal, operational and compliance reasons for requiring employees to obtain approval before working remotely from another country. Employees who knowingly disregard those requirements may expose themselves to disciplinary action, including dismissal.
However, the decision also reinforces a longstanding principle of employment law: a valid reason for dismissal is not enough. Employers must still ensure employees are afforded procedural fairness before dismissing them.
What happened?
The employee worked as a Foreign Exchange Dealer and was required to attend the employer’s Sydney office three days per week, with the option to work from home for two days a week under its hybrid working model.
The employer’s handbook stated that all hybrid working must be approved by line management, and that “Where you work is much less important to us than what you contribute”. However, it also stated that an employee’s home environment must be in the same country as their workplace unless management had provided written approval.
In September 2025, the employee requested to temporarily relocate to Singapore and work for the employer for up to 12 months under a Singapore Youth Mobility Visa he had obtained. The employee told the employer that the visa was time-sensitive and if he was to relocate, he must do so by 14 November 2025. The employer refused the request because the employee’s role was Sydney-based, and the employer did not have a Singapore office or any Singapore licences.
At the end of the three-month period, the employee then applied for, and took, annual leave from 10 -14 November 2025, and travelled to Singapore with his partner.
On 17 November 2025, the employee was due back at work from his annual leave. Instead of attending the Sydney office, the employee logged into the employer’s systems from Singapore, and commenced work. Suspicious about the employee’s location given his prior requests, the employer ran a PowerShell command on the employee’s work laptop to obtain his GPS coordinates, identified his location as Singapore, and directed him to stop working immediately.
Following an investigation into the employee’s actions and conduct, and after reviewing all relevant information, including the employee’s responses to the employer’s concerns, the employer ultimately terminated the employee’s employment on the basis that he had:
- Worked from Singapore when his request had been declined
- Ignored the employer’s decision and concealed his location while continuing to work in Singapore
- Seriously breached company policies
- Provided evidence that did not adequately explain or justify his actions
- Failed to follow lawful and reasonable instructions
- Caused an irreparable breakdown of trust and confidence.
Was there a valid reason for dismissal?
Yes.
The Commission found that the employee:
- Knew approval was required before working overseas.
- Had previously been refused permission to relocate to Singapore.
- Deliberately commenced work from Singapore without approval.
- Failed to disclose his location before being discovered.
- Had previously concealed overseas work by telling his manager he was working from home when he was actually in Bali.
The Commission also found that the employee acted dishonestly in planning to work in Singapore and in failing to disclose his location to his employer when he logged on to work in Singapore. The Commission also observed:
The requirements detailed in the employer’s handbook, which stated that employees who worked from home were not allowed to work overseas without approval, and the employee’s conduct led the Commission to find that there was a valid reason for dismissal.
Why was the dismissal still unfair?
Despite finding that there was a valid reason for the dismissal, the Commission held that the process followed was procedurally unfair.
The key problem was that the employer did not fully present its concerns to the employee before deciding to dismiss him.
In particular, the Commission found that:
- The employee was not expressly told that the employer considered him dishonest.
- The employer did not identify the specific policies and contractual provisions it relied upon.
- Additional factors later relied upon by the employer, including trust and confidence issues and historical attendance concerns, were not clearly raised during the disciplinary process.
- Internal communications suggested decision-makers may have formed views about the employee’s guilt before receiving and considering his response to allegations concerning his actions and conduct.
As a result, the employee was not given a proper opportunity to respond to all of the matters ultimately relied upon for dismissal.
The Outcome
The Commission found the dismissal was unfair because of procedural unfairness. However, the Commission declined to order reinstatement and awarded no compensation.
This was because:
- The employee’s conduct would likely have led to termination even if a fair process had been followed
- The employee had already received four weeks’ pay in lieu of notice, which effectively covered any loss the employee suffered.
Key lessons for employers
1. Overseas remote work should require clear prior approval
Employers should have policies that expressly address:
- Remote work locations, especially if overseas, must be approved by the employer in writing
- Remote work locations must be assessed for work health and safety risks before work commences
- What the approval requirements entail.
- Data security obligations.
- Compliance risks.
- Consequences of non-compliance.
The clearer the policy, the easier it will be to enforce.
2. A valid reason is only half the battle
Even where misconduct appears obvious, employers should ensure employees understand:
- The precise allegations.
- The policies allegedly breached.
- Any concerns about honesty, integrity, or trust.
- The potential consequences.
3. Give employees a genuine opportunity to respond
Before reaching a final decision:
- Put all allegations to the employee.
- Identify the evidence relied upon.
- Consider any response with an open mind.
- Avoid communications that suggest the outcome has already been decided.
4. Document expectations about work location
As hybrid and remote work arrangements become increasingly common, employers should ensure contracts and policies clearly identify:
- Approved work locations.
- Whether overseas work is permitted.
- Approval processes.
- Reporting obligations when travel plans change unexpectedly.
Need Advice?
HintonFlynn Legal has extensive experience advising employers on their obligations when navigating possible disciplinary action or dismissal. HintonFlynn Legal also advises employers on workplace investigations, disciplinary processes, remote work policies, misconduct allegations and unfair dismissal claims.
Seeking advice early is the first step when navigating complex issues and employee misconduct. A procedurally fair process can often be the difference between successfully defending a claim and facing an adverse finding in the Fair Work Commission.
