FWC orders WFH employee back to office despite “challenging and difficult” personal life

A Brisbane-based member of the Fair Work Commission has offered sage guidance for employers when rejecting employees’ requests for flexible working arrangements on reasonable business grounds, with Deputy President Nicholas Lake ordering a resistant remote worker partially back into the office, despite the employer failing to provide “a sufficient explanation” for refusing his request to remain wholly remote.

The long-serving employee, who is engaged as a Classifier for a distribution company, began working full-time in 2015, before reducing to a four-day week in 2019 at his request. All employees reverted to fully remote work, on a full-time basis, from April 2020 when the COVID-19 pandemic took hold, with the Classifier requesting a second reduction to part-time hours across four days (fully remote) in October 2021, which became his permanent ongoing arrangement from March 2022. The Classifier worked entirely remotely from April 2020 to September 2022, at which time the employer implemented a hybrid work model, requiring employees to work from the office two days per week. When the employer sought to increase in-office attendance to three days per week (even for part-time employees) in July 2023, the Classifier raised a new request for flexible working arrangements, seeking to work from home three days per week, with only one day in the office.

The employee’s request disclosed that both of his teenage children, who were homeschooled, had autism, as did his wife, who had also been diagnosed with another debilitating illness during 2022. The employee expressed his family was “already struggling with the 2 days a week [in office]” and that “3 days puts even more pressure on me”. The Classifier said he recognised the employer “only wants us in the office to ensure our mental wellbeing”, adding he hated asking for an exemption, and was therefore happy to “meet the company part way” by working one day per week in office.

The employer rejected the employee’s request claiming, “loss of efficiency or productivity” and explaining that “intentional and effective collaboration among team members” would be encouraged with employees working in the office at least three days per week. Despite rejecting the employee’s request in this instance, the employee was permitted to remain on his existing hybrid work model of two days in the office, two days remote. During August and September 2023, the Classifier continued to seek clarity on the employer’s concern his proposed working arrangement would have led to a “loss of efficiency or productivity”, while he regularly accessed his annual leave and personal leave on days he would have attended the office. When the Classifier injured his ankle in mid-September rendering him unable to drive, he took extended unpaid leave until resuming work, on a remote basis, just prior to Christmas 2023. By early-January 2024, the Classifier raised another request for flexible working arrangements, seeking to work entirely from home for four days per week, “indefinitely”.

After a drawn-out period of attempted negotiation, during which communication between the employer and employee became increasingly strained, the employer formally refused the employee’s request to work solely remotely on 21 February 2024, offering instead to maintain his existing hybrid working model of two days in the office, two days remote. The Classifier disputed that he had been provided with the reasonable business grounds for refusing his request and lodged a dispute with the FWC soon after.

The employer permitted the Classifier to work one day a week in the office, and three days a week at home during the Commission proceedings but the employee had not complied and had avoided returning to the workplace altogether. Deputy President Lake chastised the Classifier for ignoring his employer’s direction and working “according to his own preference”, adding he had “no authority to do so”. The Deputy President explained, “until a [flexible working arrangement] request is granted, employees are expected to follow the lawful and reasonable direction of the employer”. “The flexible working arrangement cannot be worked by the employee until the request is approved”, he observed.

Deputy President Lake assessed there was “sufficient evidence” to confirm the Classifier and his family were dealing with the various personal challenges identified, with the Deputy President commenting he was “very sympathetic” to the Classifier’s plight (and that of his wife and children). However, Deputy President Lake identified the Classifier, when dealing with his employer over his request to work wholly remotely, was “not forthcoming during this process, wanting to record the meetings and was not available to meet in person”. “In the end, the information provided by [the Classifier] lacked sufficient detail for [the employer] to accept the request from [him] to work exclusively from home”, he added.

Failing to provide the employer with sufficient detail to assist deliberations meant the Deputy President was satisfied the employer did “genuinely attempt to reach agreement in understanding [the Classifier’s] circumstances with the information before them”.

Turning to evaluate the employer’s refusal on reasonable business grounds, Deputy President Lake was not satisfied that the reasons, which pertained to concerns over efficiency, productivity and effective collaboration, had been sufficiently evidenced or explained.

The Deputy President acknowledged that an employee failing to meet targets, being difficult to contact, and/or tasks not being performed to a specific standard while the employee was working from home would constitute reasonable business ground to refuse a request to work exclusively remotely, as would the lost opportunity to assist an employee improve their performance when working from home. In addition, Deputy President Lake suggested the employer could have considered the Classifier’s wellbeing as a factor in refusing his request, noting that, “work from home arrangements on a full-time basis can be isolating, particularly in a potentially stressful home environment” and that specifying some component of attendance in the office would permit the employer to “ensure there are adequate support processes at work for him”. However, none of these potential concerns were substantiated or put to the Classifier as reasons for the refusal. Instead, Deputy President Lake cautioned, “generic and blanket HR answers are not sufficient alone to establish a reasonable business ground for refusing a request”.

Notwithstanding the shortcomings in the employer’s refusal, the Deputy President was not inclined to grant the Classifier’s request to work exclusively from home – which was the only working arrangement the Classifier was willing to entertain – because there were “legitimate concerns” regarding the Classifier’s employment. Deputy President Lake expressed that the Classifier had “created considerable tension with his managers regarding this situation such as insisting to record calls, to correspond via email, and refusal to work in the office”, while there were also concerns of the Classifier “having a lower output of classifications performed compared to his colleagues”. Although not being “ideal” given the Classifier’s “challenging and difficult” personal circumstances, the Deputy President assessed that the employer’s proposition that the employee work in the office one day per week and three days from home provided the most workable solution, at least initially.

Conceding that the Classifier had already failed to comply with his employer’s previous direction to work from the office one day per week, Deputy President Lake authorised “certain caveats in the flexible working arrangement order to make this Order effective”. These safeguards included that the Order be in force for a trial period of three months (expiring in October) and the employer retaining the right to “lawfully and reasonably request [the Classifier] to work at the office on the days that he is permitted to work from home”, in circumstances where the Classifier does not attend the office for two consecutive weeks; there are performance concerns, or there are genuine operational requirements which require his attendance in the office.

The Classifier may raise a new request for flexible working arrangements upon expiry of Deputy President Lake’s Order in October.

Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWC 1845 (12 July 2024)