One of the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FW Act) is the entitlement for employees in particular circumstances to request a flexible working arrangement with their employer. Such requests can only be refused by employers on reasonable business grounds.
An employer’s refusal of a flexible working arrangement request was recently considered by the Fair Work Commission (the FWC) in Phillips v Integrated Medical Solutions Group Pty Ltd  FWC 6225.
The employee in this matter was employed as a medical receptionist. In October 2018, she took unpaid leave due to the ill health of her mother who sadly passed away in January 2019. As a result of the passing of her mother, the employee took on the responsibility of looking after her 11-year-old sister.
In March 2019, the employee advised her employer that she was ready to return to work and requested the following arrangements:
- working hours to be from 10am to 2pm each day so she could get her sister ready for school and pick her up;
- one week off work each school holidays; and
- three weeks off work in the summer school holidays.
The employer refused the request and set out in writing the reasons for the refusal. The employer’s reasons included that:
- the opening and closing times of the medical practice were its the busiest times;
- there would be significant increased costs for hiring a casual employee to cover part of the day;
- the annual leave arrangements could not be accommodated; and
- the annual leave arrangements would be unfair as other employees could not take leave during this period.
The employer offered alternatives, including that the employee could work from 8:30am to 2pm or she could convert to casual employment. At all times, the employer maintained that she could return to her full-time employment.
The employee claimed that, in November 2018, she had discussed the reduced hours of work with her employer and she was assured her that she would have a job to return to.
After the initial attempt at an agreement failed, there was further communication between the employer and the employee in which the employer asked the employee to confirm the arrangements for her return to work. In May 2019, the employer advised the employee that if it did not receive a confirmation from her, it would treat her employment as being at an end.
After the employee provided no response, the employer advised her that her employment had ended. The separation certification provided to the employee stated that the “Employee ceased work voluntarily”.
The employee then lodged an unfair dismissal application, alleging that she was dismissed at the initiative of the employer. The employee argued that she was promised reduced working hours and wanted to return to work.
The employer submitted that it made no promises about working arrangements to the employee, that it reasonably considered her request for flexible working arrangements and proposed alternatives for the employee to consider.
The FWC was first required to consider whether the employee was “dismissed” within the meaning of section 386 of the FW Act. It found that the employee was not “dismissed” by the employer, as there was no action by the employer which intended to bring the employment relationship to an end.
While sympathetic to the employee’s circumstances, the FWC held that the employer “repeatedly, reasonably and professionally corresponded with Ms Phillips about the reduced hours of work it could accommodate on her return.” The FWC found that the employee could have returned to her substantive position and chose not to accept the reasonable alternative arrangements proposed by the employer.
In relation to flexible working arrangements, the FWC noted that an employer was not bound to agree to an employee’s flexible working arrangement request, and an employee was not entitled to demand certain working arrangements. It stated: “An employer has an obligation to consider all requests for flexible working arrangements, but can reasonably refuse such requests.”
The FWC also considered whether the employee was constructively dismissed. It found that the employer’s conduct did not force her to resign. Rather, the FWC held that the employer’s refusal was not unreasonable and the employer had met its obligations to respond to the employee’s request.
As the employee was not dismissed, the FWC dismissed the application.
Lessons for employers
Flexible working arrangement requests can be made by a permanent employee with at least 12 months of continuous service or a long-term casual employee who:
- is a parent, or has responsibility for the care of a child who is school age or younger;
- is a carer;
- has a disability;
- is 55 years old or older;
- is experiencing violence from a member of the employee’s family; and/or
- provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
As noted by the FWC in this matter, the entitlement is only a right to request flexible working arrangements – employers may refuse the request on reasonable business grounds.
For employers, it is important that requests for flexible working arrangements are thoroughly considered, and if possible, alternatives are offered. Where the request cannot be accommodated, the reasons for refusing the request must be provided in writing to the employee.
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