The FWC has recently confirmed an employer’s ability to refuse a flexible working arrangement request on reasonable business grounds, even where there are difficult circumstances surrounding the refusal.

This decision involved an employer who received a flexible working arrangement request from an employee experiencing family and domestic violence. The employee in this case was employed as a provisional psychologist on a part-time basis and provided in-person sessions to clients. During a period of leave from their employment as a result of experiencing family and domestic violence, the employee relocated from Darwin to regional NSW after her partner breached a domestic violence order. Before returning to work, the employee made a request for a change to her working arrangements. The arrangement sought by the employee was to work her contracted hours exclusively remotely (via telehealth) in consideration of the impromptu move. Following discussions between the employee and a Director of the employer, the employee was informed in writing that her request had been refused. The employer provided the following reasons when refusing the request:

• a fully remote role via telehealth would be considered a new role;
• there were no vacancies for telehealth psychologists;
• existing telehealth psychologists were not permanent employees due to the low demand for telehealth services;
• the employer was unable to provide the existing telehealth psychologists with regular sessions;
• the requested working arrangement would place an unsustainable financial burden on the business; and
• reducing in-person sessions or forcing a telehealth model onto existing clients who have opted into in-person services would have an unacceptable negative impact on service delivery.

The employer could not, despite the personal circumstances which led the employee to make the request, financially support a permanent telehealth position, particularly given there was limited demand for this type of service.

FWC considerations

The FWC began by noting that the employer could only refuse the flexible working arrangement request if each of the four requirements under the Fair Work Act 2009 (Cth) were met. These are that the employer:

• has discussed the request with the employee;
• genuinely tried to reach an agreement with the employee;
• has had regard to the consequences of refusal for the employee; and
• the refusal is on reasonable business grounds.

The dispute in this case arose from the fourth requirement, whether the employer had reasonable business grounds for refusing the request.

The FWC was satisfied that the employer’s refusal was based on reasonable business grounds in two respects. First, there was not enough demand for telehealth services and second, the proposed new arrangements would have a negative impact on the employer’s financial position.

The FWC in their considerations addressed that the employer failed to respond within the requisite 21-day period and that there was a delay in meeting with the employee to discuss her request. The employer was acutely aware of their obligations under the FW Act and the obligation to discuss the request and in consideration of this, waited for an appropriate time when the employee was fit to attend. Accordingly, this was not a material consideration for the FWC.

Key Takeaways

In this case the employer and employee were faced with a challenging position and a balancing act of the competing interests was required.

The FWC commented that the employee was “entitled to request flexible work arrangement…entitled to feed aggrieved that the [employer] refused her request. But that is not to say that the [employer] acted inappropriately.” The FWC went on to say that the employer was entitled to refuse the request and there were reasonable business grounds for doing so.

No two flexible working arrangement requests will be the same, each request needs to be considered individually by an employer. However, this case provides some guidance to employers navigating flexible working arrangement requests in difficult circumstances.