It is not uncommon for employers and employees to agree to flexible working hours, particularly in circumstances where the employee has family or other caring responsibilities. Such arrangements are best recorded in writing, setting out clear expectations of the employee.
In Sinclair v Sunwise Constructions Pty Ltd  FWC 5994, the Fair Work Commission (FWC) was recently required to consider an unfair dismissal application of an employee who was dismissed after she was requested to return to perform her full-time hours of work onsite and during business hours.
The employer was a small business and the employee was a full-time office administrator / receptionist. The employee’s duties required her to receive goods, take calls, deal with visitors and undertake general administration of files kept in the office. The employee was required to work from 8-8:30am to 4-4:30pm Monday to Friday.
The employee also had caring responsibilities for her grandson who had special needs. This required her to attend appointments and meetings at short notice. While there was no agreement in place, the employer was at the time understanding of her family responsibilities. It permitted the employee to work altered hours, to take time off from work, to work from home and outside of business hours.
The employer gave evidence that in the last six months of employment, the employee only worked 30 hours per week, at times of her choosing and outside of business hours.
In early 2021, the employer conducted a review of its business after a financially difficult 2020. The employer formed the view that it needed to improve the way it was operating its business, in particular, it determined that it was important to have someone working in the office full-time. This meant that the employee’s irregular hours of work and attendance was no longer sustainable for the employer.
In April 2021, the employer met with the employee and explained that she needed to return to perform full-time hours of work which was to be during business hours and if she could not fulfil this, she would be let go from the business. The employee was given time to consider whether she could commit to working full-time hours.
After the meeting, the employee advised that she would commit to working full-time but needed time to make arrangements for her grandson.
In May 2021, the employee sent an email requesting that her hours of work be changed to allow her to take her grandson to support services. The employer sent an email in which they advised that they were going to consider the employee’s request, but asked her again whether she would be able to commit to the full-time hours required, including being able to focus whilst she was at work.
The employee and the employer had discussions in relation to this and it was suggested to the employee that she work part-time. However, the employee advised that she could not do so.
The employee later sent an email advising that she could not commit to full time work in the short term and requested leave for 4 to 6 months. The email also provided that she would be taking a week of annual leave due to stress and anxiety. This meant that the employee would not be able to attend for work the following day.
The employer advised the employee that her annual leave request could not be approved at late notice. In response to this, the employee produced a medical certificate.
In relation to the employee’s request for 4-6 months leave, the employer advised the employee that it could not keep the role open for that period of time. On that basis, the employer terminated the employee’s employment.
Before the FWC, the employee claimed that there was not a valid reason for dismissal. The employee submitted that the reason she was dismissed was because she requested time off for her carer responsibilities and because she was going to be absent on sick leave.
The employee submitted that she was entitled to vary her working arrangements and that under the Equal Opportunity Act 2010 (Vic), an employer must not unreasonably refuse to accommodate an employee’s responsibilities as a parent or carer. The employee submitted that she was not given a warning or opportunity to remedy the situation.
The employee also submitted that the dismissal was not consistent with the Small Business Fair Dismissal Code (the Code) because she was not given a reason why her employment was at risk of termination and was not given a warning.
The employer rejected the employee’s claims and provided evidence that the only reason that the employee was dismissed was because she did not have the capacity to perform the job on a full-time basis and the business could not sustain to maintain a position which was not filled properly.
The employer submitted that it had asked the employee to commit to full-time work but not long after doing so, she requested reduced hours. The employer submitted that they could not reach agreement with the employee about her attendance and hours of work.
The FWC was satisfied that the dismissal was consistent with the Code. In particular it was found that:
- The employee did receive a warning as she was put on notice in April 2021 that her employment was at risk of termination unless she was able to work full-time hours. The FWC accepted the evidence of the employer that the employee was simply required to commit to working full-time and given time to do this, not required to work full-time immediately;
- The employee was given time to provide a commitment to work towards full-time hours which was similar to responding to the warning and being a provided with an opportunity to rectify the issues;
- There was a valid reason for dismissal, being her incapacity to work full-time hours on site during business hours; and
- The employer did not dismiss the employee because she requested unpaid leave or because she would be absent on sick leave.
The FWC found that the situation was no longer tenable for the employer who had been “exceptionally flexible and considerate” of the employee and “acted entirely reasonably”.
Lessons for employers
Flexible working arrangements can work for employers and employees. Under section 65 of the Fair Work Act 2009 (Cth), certain employees can request flexible working arrangements.
Where a flexible working arrangement exists, it is important that it is put in writing and sets out the expectations of the employees, including having arrangements for regular reviews. Employers may also wish to consider a trial period to determine whether the flexible working arrangements are suitable to the business and the employee before there is final agreement.
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