Flexible working arrangements and when they simply don’t work

Under the National Employment Standards, employees have a right to request from their employer flexible working arrangements in some circumstances. Such requests may involve changes to work hours, patterns or locations so that an employees may either, maintain a work-life balance, continue their caring responsibilities, or may be able to work despite major interruptions to business and industry such as global pandemics. Employees may also be afforded extra rights to request flexible working arrangements from their employer under certain modern awards and enterprise agreements.

According to the Fair Work Ombudsman (FWO) flexible working arrangements may be requested from employees if they have worked with their employer for at least 12 months and are either a parent with caring responsibilities of a child that is school-aged or younger, are a carer for a family member, have a disability, are 55 years of age or older, are experiencing family or domestic violence, or are caring from a family member who is experiencing domestic violence.

Casual employees may also request flexible working arrangements from their employer provided they have been employed for at least 12 months, so the flexible working arrangement scheme endorsed by the FWO does not discriminate and gives ample opportunity for employees’ needs to be recognised and accommodated for by employers, which may not only assist in the retainment of talent but may contribute positively to overall productivity. However, it is apparent that the ‘flexibility’ of such working arrangements has a limit.

The Fair Work Commission (FWC) recently upheld the dismissal of an employee by a construction company (the Company) who was working under a flexible working arrangement while simultaneously caring for their grandson with special needs. The FWC found that while the Company was “exceptionally flexible and considerate” towards the employee during their five year tenure with the Company, ultimately the flexible working arrangement became untenable.

The employee was primarily responsible, with limited support, for the care of her grandson and as such, requested a flexible working arrangement from the Company while engaged as a receptionist. Initially, the Company agreed to such an arrangement which involved considerable leeway in consideration of the employee’s family life allowing time off, altered hours, permitting the employee’s grandson to be onsite while she worked, and diverting phone calls to her mobile while she cared for her grandchild at home.

After identifying that the full-time employee had worked on average 30 hours per week in the 6 months leading up to her dismissal, the Company noted that together with the financial strain it was experiencing in 2020 that the employee’s irregular hours and attendance meant that the working relationship between the Company and the employee was no longer sustainable. After the employee requested to take 4 months unpaid leave to care for the child, which the Company refused, the Company dismissed the employee for being unable to fulfil the inherent requirements of her role as receptionist. Shortly after, the employee filed an unfair dismissal application in the FWC.

The FWC ultimately found that the dismissal was consistent with the Small Business Fair Dismissal Code, such that the Company acted “entirely reasonably” when it dismissed the employee for being unable to commit to the entire capacity of her role. Although the employee attempted to do all that she could, including coming to work at 4am to perform tasks, Commissioner O’Neill recognised the efforts made but ruled in favour of the Company’s contention that it necessarily “required the employee to be on-site during business hours” in accordance with the nature of the employee’s role.

While flexible working arrangements can play positive role in keeping employees engaged despite difficulty personal circumstances, sometimes they can impede negatively on the business interests of employers, as demonstrated by the case above. If you have any questions about responding to employee requests for flexible working arrangements, please do not hesitate to contact Nick Stevens, Luke Maroney, or Daphne Klianis.

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