An employee submitted a dispute after his request for a flexible working arrangement was rejected by his employer. The employer initially justified its refusal with reasons within the prescribed 21 day period, but sought to rely on further reasons during the appeal. The Fair Work Commission ruled that once an employer had given reasons for refusing the request, they could not seek to rely on further reasons not included in their original decision.

In Issue

  • Was the employee’s request refused on reasonable business grounds?
  • Could further reasons for refusal of the request be relied on after the required 21 day period?

The Background

Detective Senior Constable Gary Emery (DSC Emery) requested a flexible working arrangement from Victoria Police (the Appellant) which would allow him to work 10 hour shifts over 4 days per week (rather than 8 hour shifts over 5 days per week).

The Appellant responded to the request by letter within the required 21 day period, providing reasons for its refusal to allow the request. The Appellant initially relied on the fact that DSC Emery’s ability to work overtime would be curtailed by the proposed change to his work hours, as well as the contention that granting the request would impose an unreasonable financial burden on the Appellant. The dispute escalated to the Fair Work Commission (FWC), which considered that the impact on the Appellant was not likely to be great, and therefore did not amount to 'reasonable business grounds' in accordance with the relevant enterprise agreement and the Fair Work Act.

The Appellant sought to appeal the decision, introducing new reasons for the refusal to grant the request, namely that regular performance of overtime and recall to duty are an inherent requirement of DSC Emery’s position; costs flowing from granting the request would either impose an unreasonable financial burden, or alternatively they would lose a resource one day each week, and granting the proposal would potentially open the 'floodgates' for future similar requests.

The Decision at Hearing

The FWC found that while it is the case that disputes can evolve and develop, the Appellant was not entitled to procure and rely on additional grounds for refusing a flexible work arrangement almost a year after the initial request and response was made and given. The FWC reinforced the Appellant’s obligation under the legislation to respond to a request and provide reasons within 21 days.

The FWC did not believe that allowing DSC Emery’s request would have any significant or adverse impact on the Appellant’s business. It was also noted that the proposed flexible working arrangement was not for an indefinite period, but rather, for a period of 12 months. The FWC was of the view that this was a significant factor indicating the Appellant had erred in refusing the request as the Appellant would have an opportunity to review the impact of the flexible working arrangement after the 12 months. The FWC dismissed the appeal.

Implications for you

This decision highlights the factors that employers must consider when refusing a request for a flexible work arrangement. The overall impact of the request must be assessed to determine whether it can be refused on reasonable business grounds, and all sufficient reasons to refuse must be provided by the employer to the employee within the prescribed period.

Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria [2019] FWCFB 305