‘Request’ for flexible working arrangements not akin to ‘demand’: FWC

A medical receptionist has failed in her bid to convince the Fair Work Commission (FWC) she was constructively dismissed when her employer was unable to grant her exact request for flexible working arrangements, with Commissioner Jennifer Hunt clarifying that employees are not entitled to “demand” particular working hours/days when raising such a request with their employer.

The 24-year old receptionist had requested a change to her working arrangements following the tragic death of her mother in January 2019, which left the receptionist as the primary carer for her 11-year old sister. The full-time employee had been granted indefinite leave in November 2018 and claimed she was told by the employer’s HR manager she “would always have a job to return to”.

During a meeting in March 2019, the employee sought to modify her working hours to only 10am – 2pm, Monday to Friday, and requested a week off each school holidays as well as three weeks off during summer vacation. The employer was unable to accommodate the request, explaining there was a greater need for staff at opening and closing of the practice and numerous parents amongst the staff who also sought leave during school holidays. In refusing the request, the HR manager proposed three alternative options to facilitate the employee’s return to work (including returning to her substantive full-time position, converting to casual employment or taking on part-time hours of 8.30am – 2.30pm daily).

After some periods of non-contact from the receptionist which necessitated the HR manager repeatedly following up to restate the employer’s position that her request for flexible working arrangements couldn’t be accommodated – a position the receptionist reported to be “disheartened” by – the employment concluded in May 2019. The employee believed her employment had been terminated; the employer stated on the Separation Certificate the receptionist had “ceased work voluntarily”.

During the determinative conference, despite being extremely sympathetic to the receptionist’s personal circumstances, Commissioner Hunt found the employer had not unreasonably refused the employee’s request. The Commissioner put to the employee that whilst employees may have a right to request flexible working arrangements they are “not entitled to demand” particular arrangements.

Commissioner Hunt found the employer had “repeatedly, reasonably and professionally corresponded” with the receptionist about what arrangements they could accommodate but that she chose not to accept the employer’s “reasonable and accommodating hours of work” on account of her personal circumstances. Ultimately, the Commissioner concluded the employer had met “all of its obligations to respond appropriately” in explaining why the receptionist’s request could not be accommodated.

Phillips v Integrated Medical Solutions Group Pty Ltd [2019] FWC 6225 (17 September 2019)