In brief

The right of employees to work from home in a way that best suits their lifestyle and aspirations is shaping up to be one of the biggest workplace dilemmas of the decade for employers globally. 

In Australia, the right to request flexible working arrangements, where an employee is a parent or has responsibility for the care of a child, is one of several grounds under Australia’s Fair Work Act 2009 (Cth) to request flexible working arrangements, including working from home. 

In June 2023, the Fair Work Act 2009 (Cth) was amended to strengthen an employee’s ability to request flexible working arrangements. Employers are now required to take additional steps if they wish to refuse such a request, including setting out an alternative flexible working arrangement, and the Fair Work Commission can now hear and make a decision about whether the request should have been granted. 

The recent decision of Gregory v Maxxia Pty Ltd [2023] FWC 2768, from Australia’s workplace tribunal, the Fair Work Commission, provides some guidance to employers in relation to requests to work from home.

The facts

Maxxia Pty Ltd (Maxxia) provides salary packaging services to employers and Mr Gregory’s role required him to manage cases and provide advice. For most of his employment, Mr Gregory had been able to work fully from home given the COVID-19 pandemic. However, his employment contract required him to attend the office. 

Maxxia introduced a policy which required employees to be in the office for 40% of their hours. 

Mr Gregory submitted a request to work 100% from home indefinitely on the basis that:

• he was the parent of a child who was of school age or younger, and he was seeking a custody arrangement whereby he would care for the child every second week; and 
• he suffered from inflammatory bowel disease.

Mr Gregory’s Team Leader considered the request and various factors including:

• Maxxia’s clients had high expectations in terms of service delivery and productivity, and there were significant financial penalties under contracts if Maxxia did not meet their contractual obligations;
• Mr Gregory’s daily productivity was at approximately 50%;
• the existing support put in place for Mr Gregory was not assisting him to meet the required productivity levels, and it would be advantageous to observe and support him from the office; 
• having Mr Gregory in the office would benefit company culture, training and discussions given his tenure;
• the desire to remain fair and consistent across the team, and only allow exceptions where genuinely required; and
• Mr Gregory was struggling mentally and his Team Leader felt he was not in a position to support Mr Gregory properly while he worked from home. 

Maxxia offered alternative flexible working arrangements to Mr Gregory, including:

• allowing him to work 20% of his time in the office and working his way up to 40% of the time;
• he could allocate his office days to the week he did not have custody of his young child;
• in the event Mr Gregory’s access to his son increased, Maxxia would allow him to work from home for the week he had access and vary his start, finish and meal times to allow for drop off / pick up from school.

The decision

The Fair Work Commission found in favour of the employer and rejected the work from home request from the employee finding:

• in relation to Mr Gregory’s inflammatory bowel disease, the Commission accepted that his medical condition was an “inconvenience”, however, it was “not capable of being described as a disability in the normal context of that word”. Therefore, Mr Gregory’s inflammatory bowel disease did not trigger the entitlement to request flexible working arrangements.
• Mr Gregory being the parent of a school aged child did trigger the entitlement to request flexible working arrangements. However, the Commission noted that Maxxia had made a genuine attempt to compromise with Mr Gregory and had offered working from home in the week that he was the primary caregiver, however, in the second week he had to be in the office at least 40% of the time. Yet, Mr Gregory still rejected this offer.
• in finding that Maxxia had been reasonable in rejecting the request, the Commissioner noted the desirability for there to be face to face contact within the team.

“I accept that a face to face presence would allow for observation, interaction and (if necessary) coaching to improve Mr Gregory’s productivity and provide him with greater support. I accept that Mr Gregory’s knowledge and experience could be more easily accessed by less experienced team members on a face to face basis.” [45].

What should employers do?

Requests to work from home on a 100% basis are unlikely to be reasonable for most employers. There are strong productivity and culture factors that will require most employees to attend the office on a regular basis. However, each request for flexible working arrangements will turn on its own facts.

Genuine relationships between humans in the workplace are rarely, if ever, authentically optimised by way of short Zoom meetings or online chats. Post pandemic, there is a desire for greater face to face connections between employees to restore corporate values and culture. Employers should consider developing, or reviewing, their hybrid work policies in light of this decision, focussing on the productivity and cultural implications that arise from employees spending less and less time in the physical office.