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The second Secure Jobs flexible working dispute: Is there an ability to require an employee to return to the office? (Part 2)

22 November 2023

6 min read

#Workplace Relations & Safety

Published by:

Julia Wyatt

The second Secure Jobs flexible working dispute: Is there an ability to require an employee to return to the office? (Part 2)

In a second decision within 10 days, the Fair Work Commission (FWC) has determined a dispute arising under the new flexible working provisions of the Fair Work Act 2009 (Cth) (FW Act). In Charles Gregory Gregory v Maxxia Pty Ltd (2023) FCW 2768 [16 November 2023] Mr Gregory sought orders to allow the flexible working arrangement he requested due to his childcare responsibilities and health related reasons. The FWC declined Mr Gregory’s orders on the basis that part of his request was not validly made under the FW Act and otherwise found his employer, Maxxia, had reasonable business grounds for declining the request.

In part 1 of our series on flexible working disputes, we consider another recent case from the FWC discussing the key requirements for a valid flexible working request and what constitutes a “disability”.

The Flexible working request

Mr Gregory commenced his employment during Covid and had been working full time from home for most of his employment. Maxxia introduced a hybrid working guidelines policy that required employees to work at least 40% of their hours from the office. In response, Mr Gregory made a flexible working request to work permanently from home for two reasons:

    • the first being that he suffered from a “situational crisis and inflammatory bowel disease”
    • secondly, to accommodate a custody arrangement he was seeking for his school aged child every second week. 

Maxxia denied Mr Gregory’s request and proposed a staged re-introduction to working from the office starting at 20% and then increasing to 40% in line with the policy. Maxxia also acknowledged Mr Gregory’s custody arrangement, suggesting that he allocate his office days to the week he would not have custody of the child.  

Did Mr Gregory suffer from a disability?

One of the grounds upon which Mr Gregory made his flexible working request was that he was suffering from a “disability” because of his inflammatory bowel disease diagnosis. The FWC considered whether in fact Mr Gregory was suffering from a disability and determined that he was not. It determined that the condition from which Mr Gregory was suffering would be an “inconvenience” to him but on the medical evidence presented, it was not persuaded that the illness was capable of being described as a disability as that word is ordinarily used.

In accordance with the principles outlined in Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209, this finding meant that the medical component of Mr Gregory’s flexible working request was not valid and the FWC had no jurisdiction to consider the disputed request on this basis.

Request based on carers responsibilities

The second component of the request was that Mr Gregory was a parent with responsibility for the care of a child who is of school age.  The custody arrangements were valid grounds for making a flexible working request and therefore the dispute did fall under the jurisdiction of the FWC. Mr Gregory’s request was that he be able to work full time from home and have flexible working hours and breaks (particularly in the afternoon) to accommodate school pick-up times.  Mr Gregory rejected all other proposals by Maxxia, including those which allowed him to work from home on the days he had custody of his child.

The FWC noted a series of reasons that were considered by Maxxia before rejecting Mr Gregory’s proposal and which included amongst other things:

    • their clients have high expectations of service delivery and productivity
    • there are significant financial penalties under client contracts if Maxxia do not meet the contractual obligations
    • Mr Gregory’s daily productivity was approximately 50% at the time he recommenced working in his current team, this being below the target of 85%
    • Mr Gregory’s manager had already scheduled fortnightly support sessions (on Teams) with Mr Gregory to assist him to regain the skillset he required for his role and increase his productivity
    • the existing support put in place for Mr Gregory was not achieving an increase in productivity and, so it would be advantageous to observe and support Mr Gregory in the office
    • someone with the tenure of Mr Gregory was valuable and needed to contribute to the team culture, training and discussions for the benefit of the employees with lesser tenure and this can be done more effectively from the office
    • Mr Gregory’s manager wanted to remain fair and consistent across the team with the hybrid working expectations, and only allowed exceptions where genuinely required
    • Mr Gregory’s manager had noticed that Mr Gregory was struggling mentally, and his manager felt that he was not in a position to support him properly as a team leader while Mr Gregory worked from home.

In reviewing the facts, the FWC held that there was a sufficient nexus between Mr Gregory being a carer and the request that Mr Gregory had made. It also found that this nexus would only be triggered when the custody arrangement was in place and for the period during which Mr Gregory was the primary caregiver.  As such, the written request by Mr Gregory, in terms of the childcare component, met all the requirements for a valid flexible working request.   

The FWC found that Maxxia had reasonable business grounds for refusing the request and noted the following reasons:

    • the desirability for there to be face to face contact within the workforce team
    • that a face to face presence would allow for observation, interaction and coaching to improve and support Mr Gregory’s productivity
    • Mr Gregory’s knowledge and experience would be more easily accessible by less experienced team members when working from the office.

Relevantly, the FWC determined that Maxxia had followed all the procedural requirements in responding to the request, including genuinely trying to reach an agreement with the employee. This is in circumstances where Maxxia suggested multiple alternative arrangements to address Mr Gregory’s concerns. 

Finally, in coming to this decision, the FWC stated that Maxxia was now within its rights to require its employees to return to the office in accordance with their employment contract. This was on the basis that Mr Gregory’s full time employment contract required him to attend at Maxxia’s premises to perform work.

Lessons for employers

This decision highlights that the FWC will adopt a “strict” approach to determining whether it has the relevant jurisdiction to decide a dispute over a flexible working request and, in particular, whether the request is “because of” one of the prescribed circumstances including, for example, a disability.

The reasons why Maxxia determined that it could not meet the request by Mr Gregory were detailed and persuasive from the FWC’s perspective. These reasons provide a very useful framework for employers to consider when receiving requests for full time remote working arrangements. In this context, the statement by the FWC that employers can rely upon the terms of their employment contracts requiring work to be performed at their premises is a relevant and material factor.

If you have any questions regarding this article, please get in touch with a member of our team below.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Julia Wyatt

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