In last week’s bulletin, we discussed the power of the Fair Work Commission (FWC) to arbitrate disputes about requests for flexible work arrangements. The FWC exercised this power in the recent case of Ridings v FedEx Express Australia (2024).

A part-time employee requested to work from home for each of his 4 days a week of work to care for his wife and two children, all of whom suffered from disabilities. The employer had agreed to the employee working from home 2 days a week and 2 days in the office. However, it wanted the employee to work 3 days a week in the office on the grounds that to work fewer days in the office would likely result in loss of efficiency or productivity due to less collaboration and in-person interactions in the office.

The FWC observed that the employee had not attended the office for the last 7 months, claiming that the direction to work in the office 1 day a week was not lawful and reasonable, and that he would not comply with the return-to-office mandate until the FWC had arbitrated the dispute. The FWC ruled the employee’s assumption that he is entitled to be working a flexible work arrangement without an approved request was incorrect.

The employee did not inform the employer of his increased carer demands due to worsening of his wife’s condition.

“Generic and blanket HR answers” are insufficient explanations for refusing a request

The FWC also considered that the employer did not explain or substantiate how the lack of interaction and collaboration would cause a detriment to productivity and efficiency.

The FWC canvassed the following as possible reasonable business grounds that could have been explained to the employee:

• the employee was not meeting targets, was difficult to contact and not performing tasks to a specific standard while was working remotely;
• the employer was less able to assist the employee to improve performance through collaboration and guidance if working from home 100% of the time; and
• the employer had concerns about the employee’s wellbeing and that by having the employee work in the office on some kind of regular pattern it would allow the employer to ensure there was adequate support processes at work for him.

The FWC found the employer’s reasons for refusal focused on the benefit of the employee collaborating with his fellow workers, without consideration of his personal circumstances. It did not explain how approving the request would be detrimental to the business. The FWC observed that “generic and blanket HR answers” are not sufficient alone to establish a reasonable business ground for refusing a request.

The FWC observed that a flexible work arrangement order can be subject to review and should not be indefinite unless there are very good reasons to do so. Upon the expiring of the flexible work arrangement, the employee can make a new request to extend the flexible work arrangement or request a change of the terms of the flexible work arrangement upon trialling the new arrangement.

The FWC observed that although the employee is not expected to befriend his work colleagues, the employer’s claim of losing value through missed interaction did have some weight. It had already affected other co-workers. The employee was one of the less efficient and productive employees, and attendance at the office could potentially address some solutions that would benefit him and his co-workers.

The FWC decision

The FWC confirmed the rejection of the employee’s request to work all his 4 days at home and ordered the employer to allow him to work from home for 3 days a week. The FWC ordered the employee to work at the office for 1 day a week.

It also ordered that if the employee did not attend the office for 2 consecutive weeks, and without performance concerns or genuine operational requirements requiring the employee’s office attendance, the employer could lawfully and reasonably request the employee to work at the office on the days that he is permitted to work from home.

The FWC gave the order a term of 3 months to allow the parties to review the employee’s circumstances and give the employer the opportunity to assess its operational requirements.

Do you know how to respond appropriately to a flexible work arrangement request?

The Employment Law Handbook chapter, Flexible work arrangements, will guide you through responding to your employees’ requests so that you get it right the first time, and don’t waste precious time before the FWC.