Since 6 June 2023, employees have had a new right to appeal to the Fair Work Commission where an employer has rejected an employee request for a flexible work arrangement.

In the case of Jordan Quirke v BSR Australia Limited [ 2023] FWCFB 2009 the Full Bench of the Fair Work Commission (FWC) dealt with its first appeal by an employee from an employer’s refusal to change her working hours as a part time customer experience coordinator. The employee made the application for changes to her roster to help her insomnia and anxiety upon her GP’s recommendation.

Facts

  • The employee worked pursuant to a roster of varied and non standard hours (including Saturdays) to accommodate the employer’s requirements as a retailer franchisor of electrical and furniture products providing support to its approximately 200 franchisees throughout Australia. The employee’s usual place of work was from home, subject to working one day per week at the office.
  • In April 2023, the employee formally requested a change to her rostered hours to reduce considerably her morning starts during the week as recommended by her GP who was treating her for anxiety and insomnia.
  • In August 2023, the employer rejected her request without providing any reason.
  • The employee appealed to the FWC who as required attempted to conciliate the matter prior to arbitration.

FWC decision

The FWC rejected the employee’s appeal and made some interesting comments in relation to the requirements for an employee to invoke a successful appeal from a refusal of a request for a flexible working arrangement:

  1. The employee must have the special needs or circumstances set out in section 65(1A) of the Fair Work Act 2009 (FW Act) to invoke the right of appeal such as:
    • the employee is pregnant;
    • the employee is the parent, or has the responsibility for care, of a child who is of school age or younger;
    • the employee is a carer;
    • the employee has a disability;
    • the employee is 55 or older;
    • the employee is experiencing family or domestic violence 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 and support due to experiencing family and domestic violence.
  2. The employee Ms Quirke was held not to have a “disability” as although a diagnosed anxiety-related mental disorder may constitute a “disability”, this is to be distinguished from anxiety as a “normal emotional reaction to stress”. The FWC was of the view that the material before it indicated that the employee believed she suffers from “disability” being a psychosocial disability which a person with a mental health condition may encounter when interacting with a social environment. However, it is not a diagnosis as such. Here the  GP’s letter and recommendations referred to the employee experiencing anxiety and having been the subject of a consultation on at least two earlier occasions but does not give any diagnosis of an anxiety related disorder nor does it identify that the employee’s anxiety limits her movements, activities or senses.
  3. Flexible working arrangements must be requested “because of” the relevant special need or circumstance in 1 above and the request for a change in working arrangements must relate to that relevant special need or circumstance. The FWC held that the employee’s application for a change in roster did not identify in writing the reasons for the change sought by reference to her special needs or circumstance of disability and how the proposed change in working arrangements related to that circumstance. This was despite the fact the employee had submitted evidence to her employer where her GP recommended the employee to approach her employer to request a more suitable shift rotation as this had been a cause of her insomnia and contributing to her anxiety. The GP also specifically recommended avoiding switching between evening and morning shifts in the same week.

Points to Note

  • Whilst there were other jurisdictional issues specific to this employee’s request, it would seem that the FWC will take a fairly formal and rigorous approach to the requirement for employees to set out in writing requests for flexible work arrangements based on the specific circumstances required under the FW Act as set out in 1 above and supporting evidence as to how the requested flexible work arrangement would address that circumstance.
  • This would appear to place a considerable onus on employees requesting working from home arrangements which may not specifically relate to the special needs or circumstances of the employee.
  • It is important for employers to note that the FWC’s rejection of this employee appeal was substantially based on the employee’s failure to meet the statutory requirements in the FW Act and these considerations would not necessarily apply where an employer has its own policy arrangements relating to requests for flexible working arrangements including working from home.
  • If an employee meets the statutory requirements for making a request for a flexible working arrangement, the employer will need to consider whether there are “reasonable business grounds” to refuse the request and consult with the employee prior to any refusal.

Should you wish to further discuss any aspect of this decision or employee requests for flexible work arrangements, please contact a member of our workplace relations team at Workplace Relations - Madgwicks Lawyers.

About the Author

Tim Greenall

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

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