FWC considers productivity when rejecting a disputed flexible work request

The Fair Work Commission (FWC) has dismissed an employee’s application for the Commission to deal with a dispute under s 65B of the Fair Work Act 2009 concerning a request for a flexible work arrangement with his employer in Gregory v Maxxia.

Background

The employee, Mr Gregory was a business development manager who had been working from home since March 2020 due to the COVID-19 restrictions. In June 2020, Maxxia announced that it would gradually resume office operations and asked its employees to return to the office on a rostered basis. Mr Gregory objected to this request and on 17 August 2023, submitted a flexible working arrangement application form to the Respondent requesting that he work 100% of his full-time hours from home on an ongoing basis. Mr Gregory’s grounds for the application were that he was a parent of a child who was of school age or younger, and that he was seeking a custody arrangement such that he cares for the child every second week. Attached to this application was a letter from a Dr Hetanyi advising that Mr Gregory suffered from “inflammatory bowel disease”.

On 18 August 2023, Maxxia responded to the request, and proposed an alternative that Mr Gregory work 20% in the office until the end of September, and then 40% in the office thereafter. Mr Gregory would also be able to allocate his office days to the week that he would not have custody of his son. However, this offer was subsequently rejected by Mr Gregory, who then provided additional medical evidence from his doctor in the form of a letter stating he was suffering from “a situational crisis” and “inflammatory bowel disease”.

Maxxia refused to agree to Mr Gregory working 100% from home, and ultimately refused Mr Gregory’s application on reasonable business grounds pursuant to s65A(3)(d) after genuine efforts were made to accommodate Mr Gregory’s medical condition and parental responsibilities.

The decision to reject the request was based on multiple factors, including:

• The significant penalties Maxxia would be liable for if they failed to meet their contractual obligations with the South Australian Government
• Mr Gregory’s failure to meet the daily productivity level target of 85%
• The advantages to observing and supporting Mr Gregory in the office to boost his productivity
• A desire for Mr Gregory to participate in team culture, training and discussions, especially for the benefit of less experienced employees
• To maintain fairness and consistency across the team and only allow exceptions when truly needed
• Mr Gregory was struggling mentally and not in a position to be supported remotely

Finding

The FWC acknowledged that although Mr Gregory was suffering “from a medical condition that requires him to go to the toilet with urgency and more frequently than usual,” it was not “not persuaded that it is capable of being described as a disability in the normal context of that word”. The FWC ultimately dismissed Mr Gregory’s application stating that the Maxxia’s decision to refuse Mr Gregory’s application was on reasonable business grounds.

Notably, they said that “it is desirable for there to be face-to-face contact within workforce team” and that “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”.

Key takeaways

This decision is a reminder of the dynamics involved in assessing applications for flexible working arrangements in the context of workplace’s today. The decision confirms, however, the imperative for employers to maintain operational efficiency, productivity and company culture.

Employers can only refuse a request on reasonable business grounds and if they have:

1. Discussed the request with the employee and genuinely tried to reach an agreement on alternative arrangements to accommodate the employee’s circumstances. Reasonable business grounds and include that the requested arrangements are too costly, it would be impracticable, it would result in a significant loss in efficiency or productivity, or have a significant negative impact on customer service; and
2. Considered the consequences for refusing the employee’s requests.

Our Employment, Workplace Relations, and Safety group at McCabes Lawyers is well placed to assist employers with advice on flexible work requests. Feel free to get in touch.