In our article on smart flexibility, we explore tips on how employers can implement effective flexibility arrangements as well as navigate the return to office for employees who have been working from home.
Here, we explore the legal landscape by considering a recent case in which the Fair Work Commission (FWC) found that an employee did not have the right to work from home.
The legislation that impacts an employee’s ‘right’ to work from home is the Fair Work Act (2009), specifically Section 65 – Requests for Flexible Working Arrangements.
The Legislation
Requests for flexible working arrangements form part of the National Employment Standards (NES). Full-time and part-time employees are entitled to make a request if they have completed at least 12 months of continuous service with their employer immediately before making the request.
An employee may request a change in their working arrangements if they require flexibility because they:
- are pregnant
- are the parent, or have responsibility for the care of a child who is of school age or younger
- are a carer (within the meaning of the Carer Recognition Act 2010)
- have a disability
- are 55 or older
- are experiencing family and domestic violence, or
- are caring for or supporting an immediate family or household member who requires care or support because they are experiencing family and domestic violence.
Examples of changes in working arrangements may include:
- changes in hours of work (for example, reduction in hours worked, changes to start/finish times)
- changes in patterns of work (for example, working ‘split shifts’ or job-sharing arrangements)
- changes in location of work (for example, working from home or another location).
The Case – Shane Gration v Bendigo Bank (2024)
A Bendigo Bank manager, who described himself as “not a big fan of going into the office,” filed a claim with the Fair Work Commission disputing his employer’s decision to reject his request. The request to permanently work from home was in order to aid his injured yoga instructor partner’s “recovery”. He was also registered as a carer with Carers SA.
When the bank engaged him in mid-2021, his employment contract specified the head office as his place of work for a role involving “assisting staff and partners with bank policies and loans scenarios; demonstrating a ‘can do’ approach with customers, partners, colleagues; providing regular feedback and training to staff; being available to assist other staff.”
The manager told the Commission his wife sustained a foot fracture that required a bone graft and caused constant pain.
He said her rehabilitation regime requires her to stay off her feet, however, he also gave evidence that she conducts 15 one-hour high-intensity yoga classes every week. The manager claimed she had to recuperate after classes and he needs to be at home to assist her.
He alleged that when he mentioned his wife’s injury before his engagement during COVID-19 conditions in 2021, the bank told him it provided “fully-flexible and negotiable” working arrangements and that no-one would be forced into the office post-pandemic.
But in July last year, the manager’s supervisor told him he would need to work from the office two days a week. The bank started to canvass a hybrid work model that would involve days and regularity to be determined team-by-team, guided by each team’s “moments that matter”. The “moments that matter” are those that work best when they are face-to-face and “permit employees to connect and collaborate.”
Examples would include “team planning days, milestone celebrations, onboarding, inductions, welcoming new team members, training, development conversations and obtaining technical support.”
Commissioner Platt found, “[the manager’s] primary focus was seeking to avoid a return to the workplace on the basis that it was possible to satisfactorily complete his work remotely.” And that the manager “appeared oblivious to the employer’s desire to obtain the benefits of face-to -ace contact”.
Commissioner Platt also raised the possibility that the manager “could be exaggerating his wife’s needs so as to support his desire not to return to working at the workplace.” It is worth noting that there was a total lack of medical evidence about his wife’s condition or even a statement from her about the level of support she required.
Commissioner Platt said the man’s registration as a carer with Carers SA “is not of itself determinative” and he had insufficient evidence before him to find he met the definition of carer in the Carers Recognition Act.
The manager also claimed that he had to be at home to care for his daughter, who required “uniformity in her day-to-day routine” after receiving an ADHD diagnosis, while also being a chronic asthmatic. However, Commissioner Platt said the employer provided an “appropriate response” in giving an undertaking that, when he needed to provide care and support for his daughter on any given day, he would have access to carers leave and/or be permitted to work from home.
Commissioner Platt said that when an employer reviews a flexible work application, it “necessarily involves the balancing of each party’s needs”, adding that the bank “has been very accommodating with respect to [the manager’s] needs for an extended period”. He accepted the benefits outlined by the bank that “accrue from face-to-face interaction and are desirable in the workplace”.
“Unfortunately”, he said, the manager’s “approach has not been so accommodating,” as he “appears to be only concerned about himself”.
The Finding
In his statement, Commissioner Platt concluded that “the employment relationship is a two-way street”, and the bank’s rejection of his request “is soundly based on reasonable business grounds”.
Our Learnings
This case highlights a number of key learnings including:
- Working from home is not a right or entitlement that an employee can ‘claim’.
- Organisations who have sound reasons for wanting employees to have a presence in the workplace can rely on this as grounds for negotiating suitable arrangements in response to WFH requests.
- Being a ‘carer’ does not automatically entitle an employee to work from home.
- It is important for organisations to consider requests and work with the employee to find viable options – Commissioner Platt’s comments show a recognition that Bendigo Bank was accommodating and willing to work with the manager to find a suitable arrangement. Had they simply said ‘no’ to any kind of WFH and enforced a full return to office policy, we suspect the outcome would have been quite different.
To find out more, please reach out to our team – we can assist in guiding organisations through effective flexibility policies and providing the right mechanisms for setting up Working from Home arrangements.