An employer has successfully defended an employee’s complaint that he was not allowed to work from home full-time.

The Fair Work Commission (FWC) found the employer had rejected the request on “reasonable business grounds” (as allowed in the Fair Work Act 2009). The grounds related to productivity, customer expectations, consistent treatment of all employees, contribution to work team culture, and concerns about the employee’s mental wellbeing. 

The employee was an advisor for a salary packaging company. During COVID-19 restrictions we worked mainly from home, but his employer later introduced a hybrid working policy that required all employees to attend its office at least 40% of the time.

The employee requested to work from home 100% of the time for the following reasons:

  • He was involved in a custody battle which could result in him caring for his school-age son one full week out of every two
  •  He suffered from irritable bowel syndrome.

To support his request, he submitted medical evidence that described the syndrome as a “disease” and claimed that he was suffering a “situational crisis”.

The employer responded that he could come to the office 20% of the time for an initial six weeks and then increase it to 40%, with office time only in the weeks that he did not have custody of his son. Also, he could vary his start, finish, and meal times according to need during the weeks he did have custody.

The employee insisted that he needed to work from home permanently, and referred the dispute to the FWC.

What were the “reasonable business grounds” for rejection?

The employer rejected his request for the following reasons:

  • Concerns that his productivity was well below the required level
  • Support measures thus far had failed to improve productivity, indicating that on-site supervision and support were necessary
  • Clients of the business had high service expectations and the employer risked financial penalties if it did not meet contractual obligations
  • The employee’s experience would be beneficial to newer employees if shared with them via training sessions, team meetings, etc. His work duties included a role as a support coach to other employees
  • It wanted to treat all employees fairly and consistently, with only “genuinely required” exceptions
  • The belief that the employee was “mentally struggling” and could not be adequately supported if never in the office

Decision

The FWC rejected the employee’s request, finding that the employer’s business concerns were genuine and reasonable. In particular, it supported the employer’s claims that the employee’s productivity would be improved by on-site contact and that face-to-face interaction with other employees was also desirable.

It added that:

  • Irritable bowel syndrome was not a “disease”. In any case, the medical evidence was insufficient and the employee was not seeking ongoing treatment for it
  • The custody situation was not yet determined and in any case, the employer had offered flexible work arrangements for the times when the employee did have custody of his son
  • The employer was within its rights, and the terms of the employment contracts, to order employees to attend the office
  • The employer had genuinely tried to come to a suitable agreement with the employee.

Note that the FWC did not issue any order in respect of the dispute.

What this means for employers

This case is an early test of the revised provisions of sec 65B of the Fair Work Act 2009, which cover the FWC’s powers to deal with flexible work arrangement disputes. It indicates that the scope of “reasonable business grounds” (for rejecting an employee’s request) can include productivity, customer expectations, helping other employees, and contribution to team culture and performance. However, employers will need to have evidence to support those concerns.

Read the judgment

Charles Gregory Gregory v Maxxia Pty Ltd [2023] FWC 2768 (16 November 2023)