FWC backs account manager's bid to increase work-from-home arrangement to look after child.
The Fair Work Commission (FWC) has rejected arguments from a business that changing nappies and stopping a baby from crying are grounds to refuse work-from-home (WFH) requests – something that Abraham Ash, Director of Australian Business Lawyers and Advisors (ABLA), has described as a case of a ‘lack of evidence.’
Speaking to HRD, Ash said: “What lawyers and HR professionals should be looking at here is the complete absence of cogent and probative evidence that the [work-from-home] request would be untenable. This case was the employer simply referring to comment.”
“There has to be some sort of ‘proof’ that the complaint was justified, and that the employer was doing a bad job. There wasn’t any of that here – from employer or customer – that a baby crying, for example, meant he wasn’t able to do his job properly.”
In February, the Fair Work Commission backed a Freight and Logistics Services Australia account manager’s bid to have his WFH arrangement increased – from two to three days every second week – to take care of his 18-month-old child while saving on childcare costs.
The firm argued they feared the ruling would create a precedent for its workforce – but the FWC stated employers are required to accommodate individual employee situations, even if it departs from the terms of their employment.
“An employer really needs to take a breath, reflect and consider whether it has grounds to refuse the request – as well as whether it has evidence to support the reasons why the request is being declined,” Ash said.
“In this case, the employer didn't provide any evidence to demonstrate that the employee’s COVID arrangements did have a negative impact on customer service or business productivity.”
Under the Fair Work Act, workers are given the right to flexible working arrangements, but the right to request them can be seen as an issue for HR leaders – with more power being given following a landmark Fair Work Commission hearing.
Ash told HRD: “Every case needs to be handled on its own merits – there’s no ‘cookie cutter approach’ to this, if you like. Some people need to work in the office more than others and it’s all become a bit confusing in the era of Teams and Zoom calls. Some jobs just can’t be done from home.”
“It’s all to do with the [Fair Work] Act – which requires requests to be made in writing and for employers to respond within 21 days. If the request is refused, it had to be reasonable. In a case like this, that wasn’t done. It's so difficult these days. I mean, if you're a surgeon or an actor, you need to be in work - but most people work from home. If it’s not working, it could be a performance issue.”
It's not easy to establish evidence that it's unreasonable in certain cases to work from home, Ash added. Take, for example, a national sales manager who claimed forced resignation following a ‘work from home’ dispute – with managers saying she wasn’t travelling enough for her position.
With an increasing push to get more workers back into office settings, working from home has become less common – declining slightly in December 2024 – but that doesn’t mean WFH requests will more infrequent, according to Ash.
SEEK’s latest analysis shows the proportion of job openings that made reference to work from home is at 9.5% as of December 2024, down by half a percentage point since October 2023, and 1.5ppts lower than the post-COVID peak in April 2023.
However, despite this, a blanket ruling ordering employees returning to the office needs to be careful to take into consideration flexible working arrangement requests, Ash noted.
“There might be people who have to work from outside of the office. If a child is school age or younger, if you’re a carer for someone with a disability – be that mental or physical – you’re not just able to work from an office every day. Consideration is key.”
