When does workplace flexibility cross professional boundaries?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a senior manager argued his termination for misconduct was unwarranted.
The worker claimed that his attempts to support a working parent through flexible arrangements were misinterpreted as favouritism, and that his management decisions were within his authority.
He also maintained that workplace friendships should not require disclosure and that such requirements could infringe on privacy rights.
The case highlighted key issues around managerial discretion, professional boundaries, and conflict of interest in recruitment.
Background of the case
The worker started his role as an asset & facility manager at an Anglican community services organisation in May 2023 before becoming a village manager at a retirement facility in Castle Hill in September 2023.
His role involved managing resident care, dealing with facility maintenance, and coordinating transport and activities for elderly residents who lived independently.
When the worker took on the village manager position, a regional manager informed him that the village had significant issues.
The worker was told his tenure would be brief as he would face considerable resistance from residents. Despite these challenges, the worker was assured he had the organisation's support.
The chief operating officer instructed the worker to report directly to him instead of a regional manager, though evidence later showed some dispute about who was the worker's direct supervisor.
Working parent’s flexible arrangement
In February 2024, the worker hired a new village coordinator whom he knew from another division of the organisation. The coordinator was a single parent with four children, three of whom had medical conditions requiring regular treatment.
Just one day after the coordinator started, the worker authorised a flexible working arrangement allowing her to leave the workplace at 2:30 pm daily, despite her role requiring significant face-to-face interaction with residents. The Fair Work Commission noted:
"What was remarkable, and inexplicable, about the work from home arrangement was that it was put in place by letter dated 20 February 2024, which was the day after [the coordinator] was employed in the Coordinator role on 19 February 2024 or very soon thereafter, and two days before [the worker] said he was advised of [the coordinator] resigning because of issues with childcare."
The worker allowed the coordinator's children to attend the workplace, including when they were unwell. This decision particularly concerned the employer given the vulnerable nature of the retirement village residents and their susceptibility to illness.
During the hearing, the worker's testimony revealed concerning views about resident safety. When questioned about allowing sick children at the facility, he stated:
"[The coordinator] had all morning to deal with the clients, and I was there, too. The clients didn't need to speak to her alone; they had me to speak to as well. As a matter of fact, I was the preference."
Complaints against the working parent
The employer suspended the worker in April 2024 after receiving ten complaints from residents about children being present at the facility.
An investigation revealed multiple policy breaches, including failure to follow child safety protocols and inappropriate workplace conduct.
The investigation uncovered evidence that the worker had deliberately hidden certain conduct from his superiors.
Text messages showed the worker and coordinator discussing avoiding management oversight, including one exchange where they planned to have children present only when senior managers were not on site.
Is it unfair dismissal?
The FWC dismissed the unfair dismissal application, finding the termination was justified. The Commission emphasised that senior employees are held to higher standards of conduct:
"I consider [the employer] was entitled to expect loyalty, trustworthiness and honesty from [the worker]. Such expectations were not forthcoming."
The Commission was particularly critical of the worker's disregard for safety protocols in an aged care setting:
"It is axiomatic that elderly persons are subject to greater risks from exposure to illnesses. Accordingly, it is prudent to take steps to reduce such risks... it is extraordinary that I have to observe that bringing sick children to an aged care facility increases such risks. Yet that is what [the worker] encouraged."
The decision also addressed the worker's claim about workplace friendships, noting that appropriate disclosure of conflicts of interest did not violate privacy rights or constitute discrimination.
The Commission found the worker's conduct was "wilful, deliberate and inconsistent with the continuation of his employment."