Early test of Flexible Work dispute jurisdiction favours employer

A South Australian salary packaging company has satisfied the Fair Work Commission (FWC) that their refusal of an experienced employee’s flexible work request to remain working entirely from home was made on reasonable business grounds.

The employee sought to dispute the employer’s refusal of his flexible work request under the FWC’s dispute jurisdiction, which only commenced operation on 6 June 2023. The full-time worker, who had spent much of his tenure working from home because of the COVID-19 pandemic, raised his initial request to remain working 100% remotely after his employer identified a desire, now that “the worst of the pandemic appears to have passed”, to have all employees “return to the office in accordance with their contracts of employment” for “at least 40% of their hours”.

The employee advanced that he should be permitted to continue working solely from home on an ongoing basis because he is the parent of a child who is of school age or younger and was seeking a custody arrangement that would permit him to care for the child every second week. At the time of the dispute Hearing the employee was caring for his child for one day every two weeks. Although it did not form a basis of his flexible work request, the employee also identified he suffered from a medical condition and provided a letter from an online medical provider (whom the employee admitted never personally attending) supporting his request to continue working from home.

Within one day of having received the employee’s flexible work request in mid-August, the employer had responded declining the request, identifying reasons including:

• the high expectations of clients of the company (which is the sole provider of salary packaging services for the South Australian Government) regarding productivity and efficiency and the financial penalties that attach when contractual obligations are not met;

• the employee’s daily productivity level being around 50%, when the target is 85%;

• that existing support put in place for the employee was not achieving an increase in productivity, and that it would be advantageous to observe and support him in the office;

• that the tenure of the employee was valuable and needed to contribute to team culture, training and discussions, for the benefit of employees with lesser tenure and that this could be done more effectively from the office;

• the employer wanted to remain fair and consistent across the team with the hybrid working expectations, and only allow exceptions where genuinely required;

• the employer had noticed the employee was struggling mentally and felt he could be supported better if his was in the office.

In refusing the request to continue working solely from home, the employer proposed a staged return to the workplace, by working 20% in the office until the end of September, and then 40% in the office from 2 October 2023. The employer was also prepared to allocate the employee’s in-office days to the week that he would not have custody of his son (assuming his access increased as he desired) and permit him to vary his start, finish and meal breaks to allow him to drop off and collect his son from school in those weeks.

The employee rejected the employer’s suggested alternatives and attempted to reinforce that his medical condition also warranted him continuing to work from home “whilst he worked through his health issues”, notwithstanding he confirmed he was “not undertaking any treatment plan in respect of his medical issues”. When the employer reiterated its refusal of his request to continue working solely from home, the employee raised his dispute with the FWC.

In arbitrating the dispute, Commissioner Platt assessed that the worker had “a sound basis” for desiring to work from home “for the periods when he would have care of his child” but noted “his position with respect to the remaining week was poor”. The Commissioner was unable to find the worker’s claimed medical condition constituted a “disability” which would give rise to him being eligible to raise a request for flexible working arrangements and was therefore unable to issue a determination in relation to this limb of the employee’s dispute.

Commissioner Platt confirmed the employee’s flexible work request was genuinely made in respect of his obligations as a parent of a school aged child but observed, “With respect to the nexus between the request and the circumstance, it appears to me that the nexus would only be triggered when the custody arrangement is agreed and that the nexus would only relate to the period that [the employee] had custody of the child”.

In finding that the employer refused the employee’s request on reasonable business grounds, Commissioner Platt referenced the employer’s willingness to allow the employee “to work from home in the weeks that he is the primary care giver of his school aged child and is prepared to provide flexibility sought with respect to the working hours so as to allow the child to be collected from school”. The Commissioner also accepted the employer’s reasoning behind wanting the employee to be present in the office for at least 40% of the time when he was not caring for his child, saying:

“I accept that it is desirable for there to be face to face contact within [the] workforce team. I accept that a face to face presence would allow for observation, interaction and (if necessary) coaching to improve [the employee’s] productivity and provide him with greater support. I accept that [the employee’s] knowledge and experience could be more easily accessed by less experienced team members on a face to face basis.”

Being satisfied the employer “discussed the request with [the employee], genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances, [but] did not reach an agreement; that the Employer had regard to the consequences of the refusal for the employee; and the refusal was on reasonable business grounds”, Commissioner Platt declined to make any other orders.

Gregory v Maxxia Pty Ltd [2023] FWC 2768 (16 November 2023)