A full-time employee made an unfair dismissal application against her practice employer to the Fair Work Commission after the practice was unable to accommodate her request to change her working hours.
The case is a good example of the challenges in balancing supporting employee flexibility requests with the needs of the business.
The employee, a receptionist at the practice, asked the practice manager if she could take leave to care for her dying mother. The practice manager was supportive of this and during the meeting said she would “always have a job to return to” when she was ready.
The meeting was followed by an email from the practice manager saying the employee would have a job to return to and they would review her situation closer to her return.
A few months after her mother passed away, the employee met with the practice manager to discuss her return to work.
The employee said that she wanted to work from 10am to 2pm each weekday, and to take leave during each school holiday period so she could take her 11-year-old sister to school, pick her up from school and be with her during the holidays. The employee said that her father may be able to provide some care for her sister during the school holiday periods.
The practice manager said she would need to discuss the request with the practice owner. She asked the employee if she had considered day and vacation care.
The employee advised that she wanted to do school drop offs and pick-ups for her sister, as her mother had done for her and her brother, and that she would not consider other care arrangements.
Following up the discussion, the employee emailed the practice manager, saying she was ready to return to work under the conditions requested.
Avant assisted the practice under its policy to formally respond to the employee. The email explained its inability to accommodate the employee’s request because:
• 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 many working parents, most of whom request annual leave over school holidays and it would be unfair to decline their requests because of one employee’s arrangement
• the practice would incur significant additional costs if required to hire casual staff to work at practice opening/closing times and over school holidays
• it can be practically difficult to employ casual staff over school holidays as they typically do not wish to work at this time.
“The refusal of the employee’s request was not unreasonable based on the reasons provided, and the offer of variousarrangements...
In an attempt to find a compromise, the practice proposed three alternative working arrangements:
• the employee could work from 8.30am to 2.30pm each weekday with half an hour lunch break and could apply for annual leave in line with practice policy – leave would be allocated among reception staff on a fair and equitable basis
• casual employment on standard terms, with the practice not having an obligation to offer work and the employee not having an obligation to accept any offer of work
• return to her substantive full-time position.
Appreciating the employee had been through a difficult time and would need to make alternative arrangements for the care of her sister, she was given the flexibility of returning to work following the next school holiday.
The employee responded by saying she did wish to return to work but still insisted on the same working hours with an extension to 2.30pm on the weekdays if it would help the practice.
The practice sent correspondence to the employee repeating its initial offer on several occasions to which the employee did not respond.The practice then sent correspondence advising the employee that if she did not respond, it would assume that she did not wish to continue in employment. The employee once again did not respond and the practice advised that her employment had come to an end.
At the employee’s request a separation certificate was issued with the reason for separation as ‘employee ceased work voluntarily’.
In considering the unfair dismissal claim, the commission found that the termination of employment was not at the initiative of the employer and therefore no dismissal had occurred. The refusal of the employee’s request was not unreasonable based on the reasons provided, and the offer of various arrangements for the employee to be able to return to work showed the practice was trying to accommodate her request.
The commission concluded the employee chose not to accept the employer’s reasonable and accommodating hours of work.
It also explored whether there had been constructive dismissal – that the employee had been forced into a position where resigning from employment was the only option. The commission found there had been no constructive dismissal.
The reality is that sometimes a business is unable to accommodate flexible work requests when it impacts their ability to run the business, negatively affects their staff or is not financially viable.
By seeking Avant’s support, the practice was able to clarify its rights and ensure it met its obligations to manage the flexible work request.
The written correspondence following the alternative arrangements proposal also ensured there was substantial evidence to rely on when representing the practice during commission proceedings.
1. Make sure you are familiar with s65 of the Fair Work Act 2009 (Cth), which sets out the rights of employees and employers with regard to requests for flexible working arrangements.
2. Setup a meeting with the staff member to discuss the request.
3. If you don’t have a clear picture of the reasons for why your employee would like to change their work arrangements, ask them to summarise this. This will help you to understand the needs of your employee and potentially offer alternative options if you are unable to accommodate their request.
4. Be clear and realistic about what you can provide in terms of flexibility. If you’re unsure, make sure you state this in your meeting and advise the employee of when you will be able to get back to them on their request. It may also be a good idea to explain the approvals process for such requests.
5. Note down any agreements reached in the meeting and follow up in writing with what was agreed.
6. If you are unable to come to an agreement, seek legal advice on next steps.
This article was originally published in Connect Issue no.13