Anticipated rejection of remote work request did not compel resignation: FWC

An employee has lost the right to contest the termination of his employment, after failing to convince the Fair Work Commission that he was left with no alternative but to resign when he assumed his desired flexible working arrangement was likely to be rejected by his employer.

The Brisbane-based Customer Care Consultant, who is also a carer for his wife who has a disability, had worked for the employer for three years when, in June 2024, he resigned by way of a “very positive” letter which described his experience with the company as being “truly rewarding” with “exemplary leadership and unwavering support”. The Consultant argued he tendered the letter the day after a meeting with management in which he was told “any further flexible working arrangement requests would be denied”, a point which was refuted by the employer.

Although Deputy President Lake accepted the Consultant’s evidence that “most people are not truthful when writing resignation letters”, describing such behaviour as, “a white lie to preserve a professional relationship”, he was not satisfied the Consultant’s resignation had been forced, or that a further flexible working arrangement would have been rejected by the employer.

The Consultant had operated subject to several flexible working arrangements facilitating remote work in the year prior to his resignation, with the employer’s policy requiring employees to re-apply every three months. On 10 June 2024, the Consultant had queried the possibility of switching to a remote engagement permanently (negating the need to re-apply every three months), but he was advised by his supervisor that, under the employer’s policy, he did not qualify for a ‘remote contract’ because he worked within the Brisbane metropolitan boundary. The Consultant was “visibly frustrated” that he did not qualify for a permanent remote engagement on the basis he lived “one kilometre” within the metropolitan boundary. The supervisor had suggested he would “make enquiries” on the Consultant’s behalf as to whether he might be considered for a remote contract but stressed he “wouldn’t be able to make any promises”. In response, the Consultant indicated that if a permanent remote contract was not forthcoming, he was “considering resigning” and would be looking to move to a “part time carer role”. The Consultant also inferred that the process of needing to submit flexible working arrangement requests every three months was affecting his mental health.

During Commission proceedings, the Consultant elaborated on his apprehension that his next request for a flexible working arrangement would be rejected, saying he had to “push” for his last two requests to be approved. In contrast, the employer argued he was merely asked to “provide additional information to evidence a change in circumstances where the working arrangements were changed”. The employer noted as an example, a circumstance where the Consultant had moved from the Sunshine Coast and additional information was required to substantiate how the move changed the care needs of his wife.

Despite expressing sympathy for the Consultant’s “frustrations” over having to provide additional information with each new flexible work request, Deputy President Lake described the employer’s requirement to be “entirely reasonable”, and something expected of a “diligent employer”.

The Deputy President acknowledged the Consultant was “in a difficult position and clearly under stress due to having to arrange care for his wife”, noting his “stress was compounded by his need to submit flexible working arrangement requests every three months”, but was unable to find the Consultant was forced to resign. Instead, Deputy President Lake observed the employer “showed a great level of sympathy” for the Consultant, having “approved numerous requests for flexible working arrangements in the past”. He concluded that, “it was probable that the verbal request on 10 June 2024 would have been approved eventually, had [the Consultant] not resigned the next day”.

Having determined the Consultant had not been constructively dismissed from his employment, he was ineligible to pursue an unfair dismissal application.

Moon v McMillan Shakespeare Limited & Maxxia Pty Ltd [2024] FWC 3140 (18 November 2024)