Queensland Government Bulletin

Can employers reasonably deny multi-day work from home requests?

In Petrie v State of Queensland (Queensland Mental Health Commission) [2022] QIRC 343, the appellant, who is a full-time business support officer, made a ‘flexible work application’ (FWA) to the respondent, the Mental Health Commissioner, seeking to work from home two days per week. His reason for the request was that he has responsibilities as the primary carer of his elderly parents.

The respondent approved the appellant to work from home two days per week for three months, followed by one day per week for a further three months. The respondent submitted that the temporary working-from-home arrangement was approved to assist the appellant in organising alternative care arrangements for his parents.

The approval to work from home two days per week was extended for a further three months to allow the appellant more time to arrange support for his parents.

The appellant requested a further extension of his two day per week working-from-home arrangement. But the respondent only partially approved the request, granting him one day of working from home per week for a period of six months.

The appellant appealed against this decision under the public service appeals provisions of the Public Service Act 2008 (Qld) on the grounds that the partial approval was unfair and unreasonable.

The appellant submitted that the respondent adopted a “one size fits all” approach to flexible working arrangements which did not consider his individual circumstances. He contended that he was not advised of how his working from home arrangement may significantly impact the unit’s operational requirements. His line manager was said to have strongly supported his request.

The respondent acknowledged that there were certain tasks that the appellant could perform at home. It was for this reason he approved one day per week working from home for six months.

The respondent submitted, however, that the appellant’s role requires him to provide a wide range of in-office support and assistance, including ad-hoc assistance and IT support, to the unit manager and others across the Queensland Mental Health Commission. The respondent also submitted that the appellant’s role requires his presence in the office most of the time and that in his absence whilst working from home, others in the office had to perform some of his tasks. The respondent considered that this posed an unfair burden on the appellant’s colleagues.

In her decision, Industrial Commissioner (IC) Power noted that section 4(k) of the Industrial Relations Act 2016 (IR Act) provides that one of the purposes of the IR Act is to promote diversity and inclusion in the workforce, including providing a right for employees to request FWAs to help balance their work and family responsibilities. Sections 27 and 28 of the IR Act also make provision for employees to request FWAs and outlines what the employer may decide to do in responding to such a request.

However, in considering the appellant’s case, IC Power held that the appellant was not entitled to “more” flexibility than his work colleagues because of his particular circumstances. Ultimately, she held, it was a matter for the respondent to determine how best to decide flexible work arrangements to ensure fairness across all employees whilst considering each request on a case-by-case basis.

IC Power was satisfied that the respondent provided a reasonable process allowing sufficient time for the appellant to put in place arrangements to support his parents. She remarked that the difficulty was not that there were particular incidents of the appellant’s absence causing “significant impacts” on the unit’s operations, but rather his absence led to a greater workload for other staff members.

IC Power found that the respondent’s reasons for this decision demonstrated his consideration of the appellant’s personal circumstances, and held that the decision to approve only one day of working from home was reasonably open to the respondent.

In determining that the decision was not unreasonable, IC Power relied on the principles outlined by Ryan J in Gilmour v Waddell & Ors [2019] QSC 170 at [207]-[209], where it was held that:

“The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.”

IC Power did not consider that the decision lacked justification in the circumstances.

The decision appealed against was confirmed.

Key takeaways

Working from home is not an entitlement, but in deciding flexible and WFH arrangements, decision makers must deal with requests on a case-by-case basis, taking into account the personal circumstances of the employee and the burden this may pose on the employee’s colleagues.

Authors: Jackie Hamilton & James Phillips

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