Commission finds employee’s flexible working request to work entirely from home was not reasonable

One of the many changes to the Fair Work Act 2009 (Cth) (FW Act) introduced last year include the Fair Work Commission’s (FWC’s) new powers to deal with disputes relating to requests for flexible working arrangements.

The FWC has helpfully provided some guidance in the decision of CGG v Maxxia Pty Ltd [2023] FWC 2768 on the factors it will consider when assessing applications for requests for flexible working arrangements particularly in the context of hybrid workplaces.

Maxxia Pty Ltd (the Employer) introduced a Hybrid Working Guidelines Policy (Policy) which required employees to work at least 40% of their hours from the office.

Shortly after this, an employee submitted a flexible working arrangement application requesting that he work 100% of his hours from home on an ongoing basis, as he had done since the commencement of the COVID-19 pandemic. The employee made the request on two grounds:

1. he suffers from a “situational crisis and inflammatory bowel disease” which is a “disability” for the purposes of section 65(1A)(c) of the FW Act; and
2. he was seeking a custody arrangement which would require him to take care for his school-aged child every second week, amounting to caring responsibilities under section 65(1A)(a) of the FW Act.

The Employer rejected this request to work from home full-time and proposed a staged re-introduction to working from the office starting at 20% and then increasing to 40% in line with its Policy.

It also offered to allocate the employee’s office days to the week that he would not have custody of his son and vary his start, finish and break times to allow him to drop off and collect his son from school.

In coming to this decision, the Employer had regard to various factors including, but not limited to:

• its clients (one of which included the South Australian Government) had high expectations of service delivery and productivity, which had significant financial penalties if contractual obligations were not met;
• at the time of the request, the employee had a daily productivity of 50% (which was 35% below his target) and was required to participate in fortnightly support sessions with his Team Leader;
• the existing support offered to the employee was not achieving an increase in productivity and so it would be advantageous to observe and support the employee in the office;
• the employee’s tenure with the Employer was valuable and he needed to contribute to team culture, training and discussions for the benefit of employees with lesser tenure and this can be done more effectively in office; and
• the Employer wanted to remain fair and consistent across the team with the hybrid working expectations, and only allow exceptions where genuinely required.

The employee rejected the Employer’s offer. On this basis, the Employer notified the employee that it would not agree to the employee’s request to work 100% from home on reasonable business grounds.

The employee then lodged an application with the FWC to deal with a dispute under section 65B of the FW Act, maintaining his position that he did not wish to return to the office.

In considering the factual circumstances of the case, the FWC noted that the worst of the pandemic had now passed and the Employer was within its rights to introduce the Policy which required its employees to return to the office.

In relation to the employee’s grounds for requesting a flexible working arrangement, the FWC held that it did not have jurisdiction to deal with the first ground, finding that his medical condition was not capable of being described as a disability for the purposes of s 65(1A)(c) of the FW Act.

Turning then to the second ground, the FWC held that there was a sufficient nexus between the employee being a carer and the request made such that the dispute fell within the jurisdiction of the FWC. However, the FWC noted that this nexus would only be triggered once the custody arrangement was in place and during which time the employee was the primary caregiver.

In this regard, the FWC stated that while the employee had a sound basis for making the request for the week period that he would have care of his child, his position with respect to the remaining week was poor.

Therefore, the FWC held that the Employer had reasonable business grounds for refusing the request and requiring the employee to work in office for at least 40% of the time when he was not caring for his child, citing the following reasons:

• it is desirable for there to be face-to-face contact within the workforce team;
• a face-to-face presence would allow for observation, interaction and if necessary, coaching to improve the employee’s productivity and provide him with greater support;
• the employee’s knowledge and experience could be more easily assessed by less experienced team members on a face-to-face basis.

The FWC therefore declined to make an order with respect to the employee’s application.

Lessons for employers

This decision provides clarity as to the approach adopted by the FWC when determining disputes over a flexible working request. The employer in this case was reasonable in considering factors such as the employee’s productivity and the nature of its business benefiting from employees working in office when rejecting the employee’s request for flexible working arrangements.

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