Zero WFH; No Basis for Rejecting Alternative Suitable Position

In the recent decision of Mater Misericordiae Ltd Trading AS Mater v Robyn Tyler [2025] FWC 1396 (the Decision), the Fair Work Commission (the FWC) determined that an employee cannot reject “other acceptable employment” on the basis that the new role does not allow for flexible working arrangements.

Case Overview

Ms. Tyler commenced employment with Mater Misericordiae Ltd (the Company) on 21 January 2019, on a 12-month fixed-term contract. This contract was extended for a further 12 months until 26 December 2021. On 17 June 2021, Ms. Tyler was offered a permanent part-time role as an Educator in Curriculum Design (the Role).

On 30 January 2025, the Company began consulting with Ms. Tyler regarding structural changes that were to take place within the Education and Training Division. As part of these changes, the Company found that the Role, was no longer required to be performed.

On 18 February 2025, the Company offered to Ms. Tyler an alternative suitable position within the Company. This position was as an Educator and had the same rate of pay, hours of work, work location, fringe benefits and workload as the Role. The Company advised Ms. Tyler that a refusal to accept this alternative suitable position would result in the Company applying to the FWC to reduce Ms. Tyler’s redundancy entitlements.

During the course of her employment in the Role, Ms. Tyler worked from home twice a week, although she did not have an approved Flexible Working Arrangement with the Company. The proposed alternative suitable position required Ms. Tyler to work from the Company’s primary place of work located at Mater South Brisbane. Ms. Tyler rejected the alternative suitable position on the basis that it would have a negative impact on her work-life balance, due to not accommodating to her extracurricular activities. The required onsite attendance which would.

Key Issues

The Company lodged an application to the FWC under s 120 of the Fair Work Act 2009 to vary the redundancy pay owing to Ms. Tyler. In response, Ms. Tyler raised that the basis for the rejection of the alternative suitable position included a lack of clarity around the new role and what it would entail, her inability to assess whether her qualifications met the requirements of the alternative suitable position and the reduction in the amount of time working from home.

Outcome

On hearing at the FWC, Commissioner Simpson (the Commissioner) observed that Ms. Tyler had been offered a new role at the same rate of pay and hours of work that would keep her continuity of employment. This offer was rejected although the Commissioner believes that Ms. Tyler was “capable of performing the role”.

The Commissioner found that the concerns raised by Ms. Tyler as to why the alternative suitable position was rejected were “not sufficiently significant to detract from the fact that the new role was objectively acceptable employment”.

Key Takeaway

The Decision demonstrates to employees that legal requirements override personal preferences when considering alternative, suitable positions in the event of redundancy particularly in regards to working from home.

If you have any questions about the Decision and what it could mean for you or your business, please do not hesitate to contact Nick Stevens, Josh Hoggett, Evelyn Rivera or Ayla Hutchison.