May 8th, 2024
A recent decision by the Fair Work Commission (FWC) has provided more clarity surrounding flexible working arrangements and business’ obligations to reasonably accommodate such requests.
For context, under the National Employment Standards (NES), eligible employees (such as those with caring responsibilities can request flexible working arrangements. Employers must respond within 21 days, with rejections requiring reasonable business grounds. If the initial request cannot be accepted, employers must first engage in consultation with the employer to try and find an alternative solution that works for both parties. If no agreement is reached, arbitration can be sought from the FWC.
In a recent case, a bank employee made a request to work from home full-time, citing his caring responsibilities. This was prompted by his employer’s decision that required employees return to work 2 days a week. While the employer made efforts to find an alternative through consultation, this failed, and the dispute eventually went to the FWC.
In the arbitration process, the employee explained that his wife had experienced a severe heel injury, which was substantiated by a medical certificate that stated his wife “[required] additional assistance” from him. Upon taking this evidence into consideration, the judge noted that no specifics had been provided regarding the nature of this assistance, and how the employee could be of use. The lack of specifics detracted from the employee’s argument, with the judge unable to see the connection between any caring responsibilities and the flexible work request.
When the employer was asked to provide their perspective, representatives went into further detail regarding the direction to return to the workplace. This included the benefits of in-person engagement, the more in-depth discussions that could be had in-person, the ability to engage in mentorship & the stronger bonds cultivated between employees.
While this dispute was ultimately rejected on jurisdictional grounds, it was explained that they would have ruled in the employer’s favour if the case had fallen within the FWC’s remit. The judge believed that the employee had provided insufficient evidence to substantiate any need to care for his wife and that he had been inflexible even while his employer had attempted to find a compromise.
On the other hand, the employer was acknowledged as having satisfactorily explained the business grounds for rejecting the flexible work request. They were additionally commended for attempting to engage in further decisions with the employee, with the judge believing this reflected well on how reasonable they were.
The judge’s explanation of their considerations in this case provides a useful understanding of the criteria upon which disputes surrounding flexible work requests can be decided. Not only should parties bring evidence that provides sufficient detail to satisfy the FWC that their reasoning is valid, but there should also be reasonable efforts made to engage in consultation as this is looked upon favourably.
8/05/2024
Back to News