The Fair Work Commission has ruled in favour of an employer who rejected an employee’s request to work from home on a full-time basis.
The employer’s refusal was based on the benefits it saw in the employee attending the office 40% of the time. These included the chance for the business to support improvements in his productivity and wellbeing and for him to participate in the team culture, training and discussions, to the mutual benefit of him and employees with less experience.
Commissioner Platt, who heard the matter, found the employer was within its rights to require its employees to return to the office in accordance with their employment contracts. He said face to face contact within the work team was desirable to allow for observation, interaction and coaching, especially as this worker was not meeting productivity targets from home. Likewise, face to face contact would allow easier access to the employee’s knowledge and experience by junior team members.
This is the first decision of its kind to look at WFH arrangements. The Federal Government passed changes to the laws in the Fair Work Act about flexible work requests earlier in 2023 giving employees a new right to challenge refusals (and the employer’s reasons for refusal) in the Fair Work Commission.
Employer groups resisted the changes to the laws, but can take comfort from this early decision which supports employer’s reasonable business grounds to resist 100% WFH arrangements in favour of a hybrid working week.
Facts
The employer, Maxxia Pty Ltd, provides salary packaging advice and assistance to employers. The employee, Mr Gregory, manages cases and was seconded to work as a Support Coach.
His contract requires him to attend the workplace but following the COVID-19 pandemic he continued to work from home full-time.
Maxxia introduced a Hybrid Working Guidelines policy requiring employees to work at least 40% of their hours from the office. The employee submitted a flexible working arrangement application requesting to work 100% from home on an ongoing basis because he had sought custody arrangements to care for his child every second week. His request was also supported by a doctor’s letter stating he suffered from inflammatory bowel disease.
Maxxia responded to his request straight away, with a proposal that would allow Mr Gregory to work 20% in the office for the next six weeks, then 40%, and for him to allocate his office days to the week that he would not have custody of his son. His workstation could be relocated closer to the restrooms.
The employer reasoned that if Mr Gregory’s access to his son increased, it would allow him to work from home for the week he had access and vary his start, finish and mealtimes to allow him to drop off and collect his son from school.
Commissioner Platt found that the employee did not want to return to the office and that while he had sound justification for the periods when he would have care of his child, his argument with respect to the remaining week was poor.
Commissioner Platt found the employee’s medical condition would be an inconvenience but was not persuaded that the medical evidence meant it could be described as a disability giving rise to the right to make a flexible working arrangements application.
The legal framework
Under the National Employment Standards, employees may request changes in working arrangements where:
- The employee is pregnant.
- The employee is the parent, or cares for a child at school or younger.
- The employee is a carer.
- The employee has a disability.
- The employee is 55 or older.
- The employee is experiencing family and domestic violence or cares/supports someone in their family or household because of family and domestic violence.
They must have worked for the same employer for 12 months and must make a written request supported by reasons.
Employers must respond in writing within 21 days to approve or refuse the request or set out any alternative arrangements agreed to with the employee.
An employer may only refuse on reasonable business grounds and must have:
- Explained the grounds for refusal in writing.
- Discussed the request.
- Genuinely tried to reach an agreement for an alternative arrangement.
- Considered the consequences for the employee of refusing the request.
Examples of ‘reasonable business grounds’ include:
- The requested arrangements would be too costly for the employer.
- There’s no capacity to change the working arrangements of other employees to accommodate the request.
- It would be impractical to change the working arrangements of other employees, or take on new employees, to accommodate the request.
- The requested arrangement would be likely to result in significant loss in efficiency or productivity, or have a significant negative impact on customer service.
The Commission can deal with disputes arising from an employer’s refusal or failure to reply within 21 days to an employee’s request.
Employers must understand their flexible working obligations to respond to requests, consult and consider the employer’s perspective. Each case needs to be considered carefully and any decisions need to be supported by reasonable business grounds, which may now be tested in the Fair Work Commission.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2768.pdf
