No remote work for employee fleeing “disturbing” domestic violence

A health professional who urgently relocated interstate from the Northern Territory when her partner breached an Apprehended Domestic Violence Order (ADVO) has failed in her bid to convert her role to an entirely remote position, with the Fair Work Commission upholding the employer’s refusal of her request for flexible working arrangements.

The psychologist was engaged on a part-time basis and accessing personal leave when she fled to Sydney with her child in August last year following events described as “disturbing”. Her request for flexible working arrangements was raised on 3 September, whilst she was subject to a medical certificate confirming she remained unfit for work until 24 September. The psychologist explained she and her child had been subjected to domestic violence and that the perpetrator had failed to comply with the ADVO meaning relocation out of state had been necessary to secure their safety. The employee had previously worked in-person at the employer’s NT premises but requested to work entirely remotely commencing 25 September, and went to “some length” setting out how she would facilitate the delivery of telehealth consultations along with what she proposed to provide for follow up and record keeping.

Consultation regarding the employee’s request was disrupted somewhat by the fact she remained subject to a medical certificate, prompting the employer to seek to delay discussions about the request until she was cleared to resume work. The psychologist also initially requested that all communication be done in writing – notwithstanding the obligation on the employer to meet and discuss requests of this nature before responding – and paid representatives ended up being engaged by both parties to work through the process.

Following Zoom meetings on 26 and 27 September, the employer confirmed in writing that the employee’s request to work solely remotely as a part-time psychologist could not be accommodated. The employer detailed reasons including that it would make the role “unviable” due to the “low demand for telehealth services” which would “place an unsustainable financial burden on the business” because another “in-person practitioner” would have to be employed. The employer’s response also stated that, “reducing in-person sessions or forcing a telehealth model onto existing clients who have opted into in-person services would have an unacceptable negative impact on our service delivery”.

The psychologist lodged her dispute with the Commission on 2 October, seeking an order that she be permitted to perform her part-time role “entirely remotely”. Several initial attempts to resolve the matter via conciliation were unsuccessful.

In arbitrating the dispute, Commissioner Sloan was satisfied that the employee was eligible to raise the request and that it was validly made; that the employer had responded to the request in writing and set out reasons for refusal; and that the employer and employee had first sought to resolve the dispute at the workplace level. He subsequently deduced that the matter requiring arbitration turned on whether the employer had established reasonable business grounds to refuse the request. 

Commissioner Sloan assessed that the psychologist’s evidence “created the clear impression that, to her mind, it was enough that she was ready and willing to work. After that, it was up to the [employer] to do what was necessary to make the proposed new arrangements work. If the work is currently not there to be done, the [employer] must somehow source it and provide it to her.” Despite confirming the employee was “entitled to feel aggrieved” about the employer’s refusal of her request, he was not able to conclude that the employer acted inappropriately.

Commissioner Sloan commented that the employer “was not obliged to accommodate the [employee’s] request, as the terms and tenor of some of the [employee’s] evidence suggests”, reinforcing that the employer was entitled to refuse the request, subject to establishing reasonable business grounds. Ultimately, the Commissioner was satisfied the employer met this requirement “in two respects”, observing as follows:

“First, there was inadequate demand for the telehealth services that the [employee] proposed that she would provide remotely. Any other work that the [employee] suggested she perform was not revenue-generating. This was a fundamental change in the nature of the employment given that the Applicant was employed by the [employer] to generate revenue. As I have already observed, the effect of the request was not so much a change to working arrangements, but a change to the [employee’s] position. Second, the proposed new arrangements would have a negative [impact] on the [employer’s] financial position. I am satisfied that this impact would have been more than a notional one.”

Determining he was unable to grant the order the psychologist sought and noting she had not pursued any other outcome, Commissioner Sloan dismissed the application.

Applicant v The Respondent [2025] FWC 1125 (23 April 2025)

Interestingly, Commissioner Sloan’s decision was handed down just one day after a Full Bench of the FWC upheld an appeal against a February decision of Commissioner Matheson, which originally endorsed a primary school’s refusal to accommodate a senior teacher’s request for flexible working arrangements. The Full Bench overturned the Commissioner’s decision and ordered the employee’s requested working arrangements be implemented from Term 2, 2025 – catch-up with our news post here.