Full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc6225.htm

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Background

The Applicant commenced employment with the respondent on 30 January 2017 initially as a casual Medical Receptionist. She converted to permanent employment in the same role from 1 July 2017, working an average of 38 hours per week until her employment came to an end on 17 May 2019.

The Applicant’s mother became terminally ill in 2018 and passed away in January 2019. The Applicant is 24 years old and has a great deal of hands-on involvement in the care for her younger sister who is 10 years old.

The Commissioner granted leave for legal representation because:

“I anticipated that given the sensitivity around the reasons for the employment ending, and the cross-examination that might be required, it would be prudent for there to be a legal representative who might hopefully, and sensitively, buffer the questioning between the applicant and the respondent’s witnesses”.

Ultimately this matter turned on whether there was a dismissal of employment. That is, was the refusal by the respondent to allow the applicant to work less hours a bona fide termination of the applicant’s employment by the respondent.

Further, the respondent allowed the applicant time off without pay to attend to her terminally ill mother and look after here young sister.

Need for hours to be changed

The applicant requested – and believed this was agreed – that she return to work on diminished days and hours that she needed to get her sister ready for school, drop her off and pick her up every day. She also wanted to have one week off each school holidays to care for her sister, while their father could care for her on the other week of school holidays. During the summer school holidays she proposed to have three weeks off work.

The respondent was not happy with this arrangement, formally responding (as is the legal requirement) that they were unable to accommodate the request due to the operational need of the business; and pointing out that it employed a large number of “working parents” and it would be unfair to decline their needs and agree to the applicant’s request. The respondent also cited additional costs it would incur as a result of the request.

The respondent provided an alternative arrangement offering the applicant 27.5 hours per week and taking of annual leave in accordance with the current practice of annual leave being approved “subject to the policy of allocated amongst reception staff on a fair and equitable basis”.

The parties could not agree, and the applicant resigned her employment.

Consideration

The Commissioner, whilst sympathetic to the applicant’s situation, stated that the respondent is not legally bound to accept the applicant’s request; also stating that whilst the applicant may request altered hours, that the applicant could not demand them.

Findings

The Commissioner decided that:

  • The applicant was not dismissed.
  • Was not “constructively dismissed” (ie given no choice but to resign), citing Mohazab:

…industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.

  • The Commissioner adding that the onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred.; and that case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”
  • The respondent offered up various options to the applicant for her return to work. The respondent could not accommodate the request and the respondent was not unreasonable in its refusal.
  • The respondent met all of its obligations to respond appropriately to what it understood was a flexible working arrangement request.

Conclusion

This is an important decision, in that whilst the Fair Work Act provides a right for employees to request flexible working arrangements, this does not provide a outright permission for an employee to “demand” a change. In this matter the Commissioner agreed that the businesses operational needs overrode the applicant’s request.

It is important, however, that when faced with such a request, the employer respond accordingly using logical business (ie not personality) decision making. If the business can accommodate the request without impact, then approving such a request is good for both parties…but the business must come first.