The right to request flexible working arrangements is provided for in Section 65 of the Fair Work Act and has been incorporated in all Modern Awards. However, it’s not a certainty and employers can refuse on “reasonable business grounds”.
A receptionist assumed responsibility for her 11-year-old sister after their mother's death. Her employer granted indefinite leave and she claimed she was told she "would always have a job to return to".
She then met with the HR manager to ask that her hours be changed to 10am to 2pm, Monday to Friday, and that she be given one week off in school holidays and three weeks during summer holidays. The employer declined her request, explaining that they need staff at opening and closing times, and employed a large number of working parents who also required school holiday leave.
The employer proposed three alternatives: return to a full-time role, accept casual employment or work part-time 8.30am to 2.30pm, Monday to Friday.
The receptionist replied 16 days later by text, saying she was "disheartened" by the employer’s response and asking if she still had her job in the practice "as promised or not?".
The HR manager repeated the company's offer and after a further delay, the receptionist responded that she did want to return, but on the basis of working the hours and conditions she initially requested.
The employer then replied that they had "repeatedly" advised her they were unable to accommodate the request and if a response was not received, her employment would end on May 17.
In June, she asked for a separation certificate stating that her employment had been terminated. The HR manager completed the certificate, which stated that the employee "ceased work voluntarily".
The receptionist alleged she was dismissed and filed an unfair dismissal claim.
The Commissioner pointed out that an employer has an obligation to consider all requests for flexible working arrangements, but can refuse.
Commissioner Hunt said; "I suggested to [her] that the returning employee is certainly entitled to request a return to two days per week but is not entitled to demand to work only two days per week." and that "[Integrated Medical Solutions Group] repeatedly, reasonably and professionally corresponded with [the receptionist] about the reduced hours of work it could accommodate on her return,".
The Commission found that she “…had a substantive job to return to and she chose not to accept [Integrated Medical Solutions Group's] reasonable and accommodating hours of work given her personal circumstances.”
The employer therefore did not unreasonably refuse her request for a flexible working arrangement, and her claim that she was constructively dismissed was rejected.
Phillips v Integrated Medical Solutions Group Pty Ltd  FWC 6225
Disclaimer: This summary is not legal advice. For more information on employers’ obligations, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email firstname.lastname@example.org.