Is work from home on the way out? It just might be!
Posted on December 14, 2023
The right of employees to work from home ('WFH') has been the subject of considerable conversation and sometimes dispute since the emergence of the pandemic.
In the recent case of Gregory v Maxxia Pty Ltd,[1] the Fair Work Commission (‘FWC’) affirmed an employer’s decision to deny an employee’s request to WFH 100% of the time.
The Fair Work Act 2009 (Cth) (‘Act’) provides that an employee with at least 12 months’ service, is entitled to request a flexible working arrangement, subject to meeting specific criteria. Recent amendments by reason of the Secure Jobs Better Pay Act have also imposed more onerous obligations on an employer when responding to requests for flexible work arrangements.
This decision marks a shift in favour of employers, counterbalancing the prevailing trend in favour of employees by virtue of the impact of COVID-19.
Background Facts
Mr Gregory was an employee of Maxxia Pty Ltd. As stipulated in Mr Gregory’s employment contract, and in accordance with Maxxia’s Hybrid Working Guidelines Policy ('Policy'), Mr Gregory was obligated to work at least 40% of his hours from within the office.
On 17 August 2023, Mr Gregory formally submitted a flexible working arrangement application to Maxxia, seeking approval to WFH 100% of the time on an ongoing basis. Notably he had been doing so for most of his employment given the COVID-19 pandemic.
In his application Mr Gregory relied on two grounds:
- That he is a parent of a child who is school age or younger, notwithstanding his partial custody arrangement; and
- That he suffers from inflammatory bowel disease, constituting a disability under the Act.
Maxxia responded to the request by agreeing to vary the Policy to allow Mr Gregory to work 20% in the office until the end of September and 40% in the office from 2 October 2023. Maxxia also advised that it would allow Mr Gregory to WFH in the weeks when he was the primary caregiver of his children.
Maxxia cited the following factors in coming to its decision:
- The clients of Maxxia have high expectations of service delivery and productivity, namely, there is a 99% expectation that phone calls are answered within 3 minutes and emails within 2 business days;
- There are significant financial penalties if Maxxia fails to meet its contractual obligations;
- Mr Gregory’s daily productivity was approximately 50%, considerably below the target 85%;
- Someone with the tenure of Mr Gregory was valuable and needed to contribute to team culture, training and discussions for the benefit of other employees; and
- It was noticed Mr Gregory was struggling mentally, such that Maxxia was unable to effectively support him while he worked from home.
Mr Gregory rejected this offer and maintained his application to WFH 100% of the time. Additionally, Mr Gregory supplemented his rejection of Maxxia’s proposal with medical evidence as to the degree of his condition (in the form of an online medical provider that Mr Gregory had not personally attended and who noted that Mr Gregory was not undertaking any treatment plan in respect of his medical issues).
Having genuinely tried to reach an agreement accommodating for Mr Gregory’s medical condition and parental responsibilities, Maxxia submitted that the application was refused on reasonable business grounds.
The Decision
The FWC upheld Maxxia’s decision to deny Mr Gregory’s request to WFH 100%, agreeing that the decision was based on reasonable business grounds.
In relation to Mr Gregory’s inflammatory bowel disease, the FWC noted that whilst the condition was an “inconvenience” it was not “a disability in the normal context of the word” and therefore it did not trigger an entitlement to request flexible working arrangements under s65(1A)(c) of the Act.
In relation to Mr Gregory’s caregiver responsibilities for a child who is of school age or younger, the FWC noted that this did trigger an entitlement to request flexible working arrangements under s65(1A)(a) of the Act, however the FWC noted that Maxxia had made a genuine attempt to reach a compromise and be flexible with the offer to allow Mr Gregory to WFH when he has the primary caregiving responsibilities for the children.
The FWC acknowledged that Mr Gregory’s physical presence would likely enhance his productivity and provide him with increased support. Additionally, the FWC accepted that Mr Gregory’s wealth of knowledge and experience could be more readily accessed by less experienced team members in a face-to-face setting.
Key Takeaways
- The FWC has shown willingness to acknowledge that there is genuine benefit in requiring face-to-face contact with employees in the workplace and the productivity and cultural benefits in having employees physically present.
- In light of this, employers should review their policies concerning flexible arrangements.
- Employers should be aware of the enhanced obligations when responding to a request for flexible working arrangements and the need to show that there have been discussions to genuinely try to reach an agreement.
Please contact our workplace relations team if you require any assistance with responding to flexible work requests.
[1] Gregory v Maxxia Pty Ltd [2023] FWC 2768.
