Wanting to work in South Korea, employer shoots down 'unreasonable' request
The Fair Work Commission (FWC) recently dealt with a worker’s claim that he was forced to resign because his employer failed to accommodate his request to work remotely.
The worker, Mark Lyndon Stoodley, filed an application before the FWC, alleging that his employer, Ticketek Pty Ltd, unlawfully terminated his employment.
Stoodley started working for Ticketek in 2007 as a customer solutions manager until his termination in July 2023.
In March 2022, he suffered a traffic accident, leading to a five-month absence from work. Upon returning in April 2023, he resumed full-time work, spending one day per week in the Sydney office and the remainder working from home.
On April 18, 2023, Stoodley informed his line manager of his intention to work from South Korea the following week. The management responded that “a number of factors needed to be considered, including whether Stoodley’s doctor had cleared him to fly.”
After the call, Stoodley sent an email attaching a doctor’s certificate approving travel to South Korea. The covering email explained how Stoodley would perform his work while in Seoul, including that the hotel room he would be staying in had a desk and ergonomic chair.
This triggered a series of interactions, with his line manager stating that such a change required approval. Despite expressing ignorance of this requirement, Stoodley sought approval from senior management.
Requesting approval from the Head of Ticketing, Stoodley encountered objections, leading to a formal refusal on the grounds of potential office disruption, the timing of the request, and departure from established procedures.
Stoodley was not satisfied with the management's initial decision and asked for further clarification.
Stoodley attended the office on 24 April 2023. The day before his intended trip to South Korea. The employer’s management called him and advised that “the medical certificates sent the week before were insufficient, approval to work remotely in South Korea was denied, his request should have been for annual leave and advice about the need to seek approval for remote working had not been sent to him previously.”
They also sent an email once again asserting that “the request should have been for annual leave.” The email said:
“We will consider this period as you (sic) on annual leave and therefore I will require a hand over including the full weeks plan for the team in writing this afternoon as I will have to pick up your workload. We will discuss this further and more formally when you return.”
Stoodley, experiencing anxiety and a panic attack, promptly left work, providing a medical certificate indicating his unfitness for work.
Over the subsequent weeks, Stoodley continued to present medical certificates, extending his unfit-for-work period.
Ticketek's Group HR Manager attempted to engage with Stoodley with limited success. Eventually, on July 24, 2023, Stoodley's partner submitted a resignation letter and a medical certificate indicating continued unfitness for work.
According to records, Stoodley alleged that “Ticketek had taken adverse action against him because he exercised a workplace right being a complaint made on 20 April 2023 and subsequent emails about the manner in which he was required to change his remote working location in the week of 24 April 2023.”
“The adverse action that Ticketek is alleged to have taken is declining to approve the request to change the remote working location, demanding that Stoodley take annual leave, demanding medical certification, various misrepresentations in emails going to the terms of policies, the difficulties in approving the request to work remotely, questioning medical evidence and Stoodley’s capacity to perform his role, and threatening to subject him to formal discussions.”
Stoodley also said that Ticketek “had taken adverse action because of his physical disability. Effectively, the adverse action is said to be allowing others to work overseas who do not have a disability.”
The FWC said that the management's conduct "was in response to what [the employer] believed to be an unreasonable request by Stoodley to work remotely from Seoul."
“[The] emails cite the lateness of the request, the unusual nature of the request, and the logistical difficulties associated with granting the request as reasons for refusing to allow Stoodley to work from Seoul,” the FWC said.
“Ultimately, and to accommodate Stoodley, [the management] said annual leave would be approved to allow him to travel,” it added.
Thus, the FWC said that Ticketek’s conduct “does not fall into the category of conduct which had the intention of bringing the employment to an end.”
“Nor was the termination of the employment the probable result of that conduct such that Stoodley had no effective or real choice but to resign,” it said. It then dismissed the worker’s application.
