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18 January 2022

When is it reasonable to decline an employee’s request for flexible working arrangements?

The QIRC has confirmed that it was reasonable for Queensland Health to decline a HR advisor’s request to move interstate and work from home, despite permitting her to work remotely full-time during the COVID-19 pandemic.

The QIRC has confirmed that it was reasonable for Queensland Health to decline a HR advisor’s request to move interstate and work from home, despite permitting her to work remotely full-time during the COVID-19 pandemic.

Over the past two years, we have seen an increase in flexible working arrangements in workplaces across Australia, especially the option to work from home. However, in the recent decision of Hair v State of Queensland (Queensland Health) [2021] QIRC 422, the Queensland Industrial Relations Commission (QIRC) upheld the employer’s decision to reject a HR advisor’s request to continue working from home on a full-time basis when she relocated interstate.

This case highlights important considerations for employers seeking to balance the evolving needs of employees and the workplace.

HR advisor’s arrangements during COVID-19

Ms Hair was employed by Queensland Health as a Human Resources Advisor and acting Workplace Relations Advisor. On 7 January 2020, Ms Hair was approved to work remotely for one day per week. From 26 March 2020, Ms Hair commenced working wholly remotely.

During Ms Hair’s performance review on 10 June 2021, she raised how important it was for her to continue working remotely. The Human Resource Business Partner did not raise any issues with this. Instead, Ms Hair was advised that she had exceeded or met all leadership standards.

HR advisor’s relocation request

On 21 September 2021, Ms Hair submitted a request for flexible working arrangements to work remotely from New South Wales, as she wished to relocate with her partner. Ms Bain (HR Manager) denied Ms Hair’s request after considering the nature and location of her work. Although Ms Hair had been working remotely for over a year, the initial flexible arrangements were largely a response to the ‘urgent need to limit the number of people in the workplace due to a public health emergency’.

Some elements of the HR advisor role would be difficult to perform remotely in the longer-term, including providing in‑person assistance with coaching, preparing managers to do performance management, and giving performance feedback.

Ms Bain also considered that:

  • while Ms Hair’s current client group may have been comfortable with her work being done online, it was possible that the client group could change in the future
  • while Ms Hair had offered to fly to Brisbane on short notice if required, the travel time could mean that she would not have sufficient time to prepare
  • it would fall to Ms Hair’s colleagues to cover where in-person attendance was required on short notice
  • the spread of duties would not be fairly distributed among the team; and
  • at the time, travel from NSW to Queensland required mandatory 14-day hotel quarantine.

QIRC considers decision fair and reasonable

The QIRC considered whether it was fair and reasonable to deny Ms Hair’s request for flexible working arrangements.

Ms Hair submitted that Ms Bain based her decision on hypothetical issues that had not occurred in the past 18 months. Ms Hair had been working remotely without any concerns, and Ms Bain did not offer any alternatives or consider the significant impact this would have on Ms Hair’s personal relationship.

Queensland Health submitted that, while working remotely on a full-time basis arose in response to COVID-19 and applied to the whole team, the team would now be looking to ‘find the optimal blend of remote and in person working’. Allowing Ms Hair to work remotely from NSW would set a precedent that could not be accommodated in a fair and equitable manner. While Ms Hair had not provided significant face-to-face support over the last two years, it remained a requirement of human resource advisory roles to do so.

The QIRC accepted that Ms Hair’s request would be unviable from a practical and operational perspective. Similar to many other employers, Queensland Health was planning to transition from the remote working arrangements that were in place during the COVID-19 pandemic. It is not unreasonable for an employer to determine the operational requirements for the delivery of key accountabilities, and, while an employee may prefer to work in a particular way, this must be balanced with the operational requirements of the employer.

The QIRC held that declining Ms Hair’s requested flexible working arrangements was fair and reasonable.

Lessons for employers transitioning from COVID-19 remote working arrangements

National system employers must consider requests for flexible working arrangements in some circumstances under the Fair Work Act 2009 (Cth). This applies to an employee who is the parent of a child who is of school age or younger, is a carer, has a disability, is 55 years or older, is experiencing violence from a family member, or is providing care to a member of their family or household.

Employers may only refuse requests on reasonable business grounds and should consider the following questions:

  • Would the requested arrangements be too costly?
  • Is there no capacity to change the working arrangements of other employees to accommodate the request?
  • Would it be impractical to change the working arrangements of other employees or recruit new employees?
  • Would the requested arrangements likely result in a significant loss in efficiency or productivity?
  • Would the requested arrangements likely have a significant negative impact on customer service?

With many employers seeking to transition from the remote working arrangements that were implemented during the height of the COVID-19 pandemic, the QIRC’s decision provides helpful guidance for considering the practicality and reasonableness of an employee’s request.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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