In brief

The Fair Work Commission has confirmed that whilst an employee with caring responsibilities is entitled to request a flexible working arrangement, an employee is not entitled to demand such a flexible work arrangement even in the most difficult of personal circumstances.

What you need to know

Under the National Employment Standards, an employee who is the parent, or has the responsibility for the care of a child who is of school age or younger, is entitled to request a change to his/her working arrangements because of those circumstances (e.g. changes in hours of work, changes in patterns of work and working from home).

In the case of Phillips v Integrated Medical Solutions Group Pty Ltd [2019] FWC 6225 the employee had been employed as a full-time medical clinic receptionist for approximately two years.

In 2018, the employee’s mother became terminally ill and passed away in January 2019.  This meant the employee took on hand-on care responsibilities for her 11 year old sister.  Accordingly, the employee requested a working arrangement under which she would work 10am to 2 pm as she needed to get her sister ready for school, drop her off and pick her up every day.  She also requested one week off each school holidays to care for her sister and three weeks off during the Summer school holidays.

The employer was unable to accommodate the request and provided the following reasons:

  • the practice has a greater requirement for reception staff at opening and closing times as these are the busiest times for reception staff;
  • the practice employs a large number of working parents most of whom request annual leave over school holidays and leave requests are to be shared equitably among the staff;
  • the practice would incur significant additional costs if it was required to hire casual staff to work at practice opening/closing times and over school holidays;
  • it is difficult to source casual staff over school holidays.

The employer provided the employee with an option to work 8.30am to 2.30pm and offer annual leave over holidays on a fair and equitable basis with other staff.  Alternatively, the employee could change to casual employment under which the practice would have no obligation to offer work and the employee would have no obligation to accept any offer of work for hours the employee regarded as unsuitable.

The employer did not hear further from the employee and assumed that the employee did not intend to return to work.

The employee brought an unfair dismissal claim and asserted that she had been constructively dismissed due to the employer’s refusal to accommodate her requirements for flexible working arrangements.

The decision

The Fair Work Commission dismissed the employee’s unfair dismissal application and rejected the employee’s claim that she had been constructively dismissed.

The Commission acknowledged that the employee’s inability to return on the employer’s proposed accommodations was unfortunate.

However, the employer repeatedly, reasonably and professionally corresponded with the employee about the reduced hours of work it could accommodate as part of a flexible working arrangement.  It was the employee’s choice to resign her employment and not accept the employer’s reasonable and accommodating hours of work given her personal circumstances.

Conclusion

In this case the employer was able to demonstrate that it did not unreasonably refuse an employee’s request for a flexible working arrangement.

The employer carefully considered the employee’s request and provided substantive reasons why the business could not accommodate the employee’s request on reasonable business grounds within the required 21 days.

Please discuss any concerns or queries you have with respect to any employee requests for flexible work arrangements with a member of our Workplace Relations Team.

About the Author

Tim Greenall

Special Counsel
Commercially savvy with over 30 years of experience, Tim provides pragmatic employment advice to his clients.

Related News

Senate upholds new Fair Work Regulation clarifying offsetting rules for casual loading payments

As featured in previous issues of Workplace Insights, the Full Federal Court has held that an employee employed as a casual and ostensibly paid casual loading, was nonetheless entitled to payment of accrued annual leave upon termination of his employment...
30 September, 2019

When does a demotion constitute a dismissal?

In certain circumstances, a demotion can constitute a termination of employment even though technically, the employment relationship continues. This potentially leaves employers at risk of unfair dismissal and other dismissal related applications.
27 November, 2018