Employee refused flexible work request: ‘Employment relationship is a two-way street’

FWC Shane Gration v Bendigo Bank [2024] FWC 717 (15 April 2024) has rejected a high performing employee’s request to work solely from home to care for his wife who had a medical condition and school aged child because he failed to provide sufficient and consistent evidence to support his claim that he needed to work 100% from home.

FWC held that even if the employee could meet his required workload from home, the employer’s preference for face-to-face interaction to foster teamwork on at least 2 days per week in the office justified their refusal for 100% working from home.

Our Take

Increasingly, we are seeing employees make flexible working requests to work almost exclusively from home. While remote work has significant benefits for all, the fact that work can be adequately completed at home does not prevent an employer from refusing a request.

This is a balancing exercise, and the benefits of employees working in the office might outweigh a flexible work request – because items such as: mentoring, spontaneous conversations, on-the-job learning, networking, and collaboration between teams - build resilience, social capital, and professional growth. These in-person engagements are crucial for nurturing psychosocial resources employees bring to their roles, which are increasingly important in today’s evolving work environment.

The critical issue out of all of this is for employers is – Do you have enough evidence that these ‘in the office’ items are important, required and can’t be achieved WFH?

Employers take a risk of these items appearing to be an ‘afterthought’ rather than genuine operational requirements if there is no evidence (eg position description, meeting minutes, one on one discussions, email etc).

Action items

• build a list of non-negotiables for each role and communicate these with employees (best practice is in a position description).
• consider matters such as costs, the need for in-person collaboration, and the impact on team efficiency.
• create or review workplace flexibility policies that outline the specific grounds on when flexible work requests can be accepted or denied, ensuring they are aligned with business needs.
• do not take a blanket ‘say no’ approach - carefully record the business’s reasons for accepting or rejecting flexible work requests and clearly communicate them to the employee.
• ensure that employees provide direct evidence to justify their need for flexible arrangements.
• genuinely try to accommodate the employee’s needs by offering alternative arrangements where a request cannot be fully accommodated.

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