The right to request flexible work arrangements to accommodate family responsibilities under the Fair Work Act 2009 (FW Act) are considered by many to be a “toothless tiger”. Employers are obligated not to “unreasonably refuse” such requests. Despite government assurances that there is no recourse for employees to challenge an employers’ refusal, a recent decision of the Fair Work Commission (FWC) suggests that Employers must be mindful of the general protections provisions of the FW Act when dealing with a request for flexibility.

In the case of Ms Hanina Rind v Australian Institute of Superannuation Trustees [2013] FWC 3144 (31 May 2013) it was held that a female employee was constructively dismissed when her employer unreasonably refused her request to work part time.

This case considered the jurisdictional objection of the company which claimed the employee was not dismissed but rather had effectively resigned or abandoned her employment by not returning to work full time after parental leave.

What happened

A Database/IT Systems Administrator, employed on a full time basis, had negotiated an arrangement whereby she worked from home one day a week to accommodate her family responsibilities following the birth of her first child.

The employee subsequently took a period of parental leave after the birth of her second child.

The employee initiated negotiations for flexible work arrangements for her return to work in late 2012.

The employee was covered by an enterprise agreement that gave employees a right to request a return to work after parental leave on a part time basis until their child reached school age. The company could only refuse such requests on reasonable grounds related to the impact on the workplace or business including cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

Initial return to work discussions between the employee and company canvassed arrangements for a gradual return to work from November 2012 starting two days a week to full time hours by the end of January 2013. These discussions did not conclude matters.

After the initial discussions the employee made a request to work part time. The employee told the company she did not think she would feel ready to work full time by January 2013 as initially discussed. The employee sought to extend earlier agreed part time hours until such time as she felt ready to work full time. The employee’s reasons for her request for flexible work arrangements were based on her need to transition back to work and have adequate assistance with child care and accommodate breastfeeding. The employee made it known that she was open to suggestions for flexible arrangements which facilitated working from home.

The company refused this request on the basis that the role of Database/IT Systems Administrator was:

  • a full time role;
  • that it had outsourced the role to an external provider for 12 to 15 hours per week;
  • The outsourcing was proving difficult to manage and less effective;

Discussions continued and various options were considered including the company offering to explore the possibility that the employee could return to work part time on the condition it was able to find a suitable candidate to share the role to a full time equivalent.

However, it appeared this option required the employee to return to work full time by the end of January 2013 and that she would only revert to part time once a suitable candidate had been recruited.

The discussions did not lead to any mutually acceptable and conclusive arrangement. In particular the company did not propose any options which guaranteed anything other than full time hours.

On 24 January 2013 the company gave the employee an ultimatum to return to work or otherwise be considered as having abandoned the role.

The employee contended that the company had not demonstrated a genuine desire to properly explore the job sharing option and that it was not a safe or viable option for her to return to work. The employee subsequently made her application to the FWC.

The Commission found that the conditional nature of the company’s offer to explore a job share arrangement was in all the circumstances a refusal of the employee’s request to work part time.

It was also held that it was unreasonable for the company to have refused the request. Relevantly there was no evidence that the company had tried to:

  • recruit another part time employee to job share the role;
  • had taken any steps to appoint someone internally;
  • advertise externally; or
  • engage a recruiter.

Further, despite the company’s refusal of the employee’s request, during the hearing of the matter the company continued to use the external provider for limited hours to fulfil the Database/IT Systems Administrator role. The company had steadfastly told the employee it needed the role performed on a full time internal basis on previous occasions. 

The FWC said the seriousness of the company’s refusal of the employee’s request should be viewed from the contemporary vantage point, which affords considerable importance to the ability of women to give birth to children without foreclosing their employment due to the consequences of family formation.

The FWC found that “the practical necessity of her right not to have her request to work part time until her second child reached school age unreasonably refused was essential for her continued employment to be viable. The parenting of her children was a matter of fundamental importance to her capacity to give efficacy to the contract of employment.”

The FWC found that the employee had been constructively dismissed on the basis of the company’s conduct being sufficiently inimical to the continuation of the contract of employment and the employment relationship.

What this means for employers

This case serves as a warning for employers that the FWC sees the accommodation of part time work an integral part of the contemporary workplace. Accordingly, any refusal to work part time upon the return from parental leave needs to be considered and dealt with carefully.

The FWC has expressed its clear view that part time work should no longer be considered a “fortunate privilege” but rather “the importance of parental leave and in particular leave in relation to maternity has become a matter of vital public interest.” As such employers and HR units will need to take greater care in the way such requests are assessed and managed.