Another employee fails with ongoing work-from-home bid

Merely a handful of disputes about the right to request flexible working arrangements have been referred to the Fair Work Commission (FWC) since the jurisdiction was introduced in mid-2023, and so far, the decisions have favoured employers. Most recently, a South Australian bank employee has failed to convince the FWC he should be able to remain working entirely remotely to support both his wife and daughter, with the Commission endorsing his employer’s requirement that all staff return to the workplace in some capacity. 

Post-COVID, the employer had been working towards adopting a hybrid working model which would see employees attending the office at least two days per week, with the in-person attendance designed to facilitate “deeper connections and spontaneous collaboration”, “nuanced policy discussions, brainstorming and consensus building” and assist with mentoring. The desired hybrid working model was first proposed in early-2022 with consultations extending over an 18-month period, before the employer flagged in July 2023 that 1 September would become the operative date for transition off remote-only working.

The employee had commenced with the bank during the COVID-19 pandemic when all roles were being performed from home. He argued he had identified during the interview process that his wife had recently sustained a foot injury which could require years of rehabilitation and she was necessarily dependant on his support. In response, the worker claimed he was reassured the bank’s work from home arrangements were “fully flexible and negotiable” and that no one would be forced back into the office post-pandemic.

Following the 1 September rollout of the hybrid working model, the worker lodged his first dispute with the Commission in October 2023, which resulted in a without prejudice interim arrangement, whereby the employee attended the workplace one day a fortnight until the matter was determined. During a report back in January 2024, it became apparent the basis for the employee’s request for flexible working arrangements had changed since his first request was made, but the employer again refused the employee’s revised request to remain working solely remotely in February 2024, citing reasonable business grounds. It was the revised request and the employer’s February refusal that Commissioner Platt was called upon to determine.

It was not in dispute that the worker is the parent of a child who is of school age or younger and was therefore eligible to raise a request for flexible working arrangements in respect of this criteria. However, Commissioner Platt was satisfied that the employer’s reassurance that he could access carers leave and/or be permitted to work from home on days he was required to provide care and support for his daughter constituted an “appropriate response”. The Commissioner was not convinced there was a need for the employee to “permanently work from home to deal with his caring responsibilities” and found the employer’s refusal in this respect to have been made on reasonable business grounds.

In reference to the employee’s argument that he should be permitted to continue working entirely remotely to support his wife, for whom he claimed to be a carer under the Carer Recognition Act 2010, Commissioner Platt labelled the employee’s evidence as “largely self-serving” as well as “inconsistent, largely uncorroborated and overall unconvincing”. The Commissioner observed the employee’s wife managed to function as a yoga instructor despite her allegedly debilitating foot injury and that he failed to adduce medical evidence concerning her condition, its impact on her, or the level of support she required of the employee. In failing to call his wife to give evidence, Commissioner Platt was inclined to draw the inference that her contribution would not have assisted the employee’s case. On weighing all the evidence (or lack thereof), Commissioner Platt could not be satisfied the employee met the definition of a carer under the Carer Recognition Act 2010 meaning the employee was not eligible to raise a request for flexible working arrangements on that ground.

Whilst the Commissioner was not empowered to consider this element of the employee’s dispute further, he observed that, had it been within his jurisdiction to do so, he would have found the employer rejected the employee’s request on reasonable business grounds and endorsed the employer’s reasons for pursuing their desired hybrid working model. Commissioner Platt concluded:

“I accept the benefits described accrue from face to face interaction and are desirable in the workplace. The [employer’s] reasonableness is further evidenced by it agreeing to provide further flexibility (by way of carers leave and/or additional work from home) where [the employee] is unable to attend the workplace as a result of the need to care for his daughter. Unfortunately, [the employee’s] approach has not been so accommodating. [The employee] appears to be only concerned about himself. The employment relationship is a two-way street. In my view the [employer’s] rejection of [the employee’s] request is soundly based on reasonable business grounds.”

Following Commissioner Platt’s decision, the employee was required to comply with the hybrid working model from mid-April, and attend the designated office two days per week, “with the days to be agreed between the parties or in the absence of agreement, as directed by the employer”.

Gration v Bendigo Bank [2024] FWC 717 (15 April 2024)