Ian Neil, an industrial relations barrister with over 30 years of legal experience, examined the significant legal risk of quiet vacationing for employers and employees. He also offered insights on how to effectively manage this emerging trend by implementing clear workplace policies.

The practice of quiet vacationing is more common than one might think. According to Neil, a recent study revealed that “more than 10 per cent of employees who work from home have done it from time to time."

He also hinted that “the actual number may be even greater”, acknowledging how “very often it’s not detected” despite employers implementing computer systems for tracking purposes.

Neil pointed out that the emerging trend of quiet vacationing is attributed to employees adopting the mindset that if they can work remotely from home, there is no harm in working from a different location.

“Many employees think I'm working from home, I'm working remotely, I'm doing my job perfectly well. In truth, it doesn't matter where I am. Why not take myself off to somewhere new, even overseas, continue working, enjoy being in those places, and not use up my annual leave?” he stated.

The impact of quiet vacationing on companies?

Quiet vacationing poses notable challenges for employers, particularly when undertaken without their awareness and consent. Neil underscored two primary issues that silent vacationing imposes on companies.

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The first problem that Neil mentioned was how “all employers in Australia have stringent occupational health and safety obligations to take all reasonable practicable steps to ensure the health and safety of their employees while they're working”.

He also explained that “these obligations extend to any location where work is being performed, including workers' homes.”

However, if employers are unaware of where their employees are working from, they cannot fulfil their occupational health and safety obligations.

“It is quite impossible for employers to discharge their statutory and common law obligations to ensure or to take all reasonably practicable steps to ensure their employees' safety if they don't even know where their employees are.

“They have no capacity to make a judgment or exercise any influence about whether the conditions in which they're working are safe or not,” he stressed.

The second issue that Neil highlighted is the heightened security risk associated with quiet vacationing, which poses a challenge for companies in safeguarding their information.

“Working remotely inevitably entails a lot of risk to the security of the information being transmitted, and those risks increase substantially when employees are in some locations, particularly overseas.

“There's a much greater risk of a compromise to the security of employers' IT systems and the like,” he noted.

The legal consequences of quiet vacationing?

Employees who engage in quiet vacationing without their employer’s knowledge can face serious legal consequences.

Neil outlined that such consequences arise “if employees have either expressly or by implication caused or allowed their employers to believe that they're working in one place when they're in fact working in another place”.

He also stated that “if an employer has required employees to disclose where they are, and almost every employer does that, and an employee gives a false impression to their employer, that can give rise to very serious consequences for an employee”.

Neil emphasised that intentionally providing a misleading impression to an employer constitutes “a breach of an employee’s foundational obligations”, which can result in disciplinary actions for the employees.

He even expressed how “there is a very real possibility” that employees who engage in quiet vacationing could face termination, “particularly in circumstances where it is done without the knowledge and express agreement of their employer”.

Additionally, Neil articulated the potential tax and visa implications for employees who choose to take a quiet vacation in overseas locations.

“For example, does the country in which you are working allow you to do that? You simply can't assume that it does.

“What sort of tax consequences might there be for performing work in a particular country, let's say the United States, and getting paid while you're resident in the United States?” he posed.

How to effectively address quiet vacationing?

To effectively address quiet vacationing, Neil disclosed the need for employers to develop comprehensive guidelines and ensure transparent and frequent communication with their employees.

“Employers and employees have to be open and transparent with one another.

Employers have to have clear policies about whether they will or will not allow quiet vacationing if they allow it, in what circumstances and on what conditions, and employees have to be equally frank with their employers,” he stressed.

He further stated how “no one gets anywhere in the sphere of employment by not talking to one another”.