Refusal of flexible work request not unreasonable

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Refusal of flexible work request not unreasonable

A receptionist has failed to convince a tribunal she was unfairly dismissed after her request for flexible work arrangements was rejected.

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A receptionist has failed to convince a tribunal she was unfairly dismissed after her request for flexible work arrangements was rejected.

The Fair Work Commission noted that employees were entitled to request flexible hours, but they could not demand them. And employers could reasonably refuse requests.

Background


The commission heard the medical receptionist's mother became terminally ill in 2018 and passed away in January 2019. She requested flexible working arrangements as she now had responsibility for the care of her younger sister, who was 11 years old.

The receptionist, aged 24, was working an average of 38 hour per week and requested to work between the hours of 10am to 2pm, and to take leave every school holidays, or at least for that part of the school holidays when her father was unable to provide care.

The employer denied the receptionist's request however it offered her three alternative work options, to work full-time, to work part-time, or to work as a casual employee.

The receptionist reiterated her request for her desired hours and then repeatedly failed to respond to emails from her employer regarding its alternative options. The employer subsequently paid the receptionist her outstanding leave entitlements and completed a separation certificate stating that the ‘employee ceased work voluntarily’.

Resignation or constructive dismissal


The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging that a constructive dismissal occurred.

The receptionist did not allege constructive dismissal, however the commission considered whether this was the effect of her failure to return to work. It considered Mohazab, O’Meara, Australian Hearing and Ashton, and was satisfied the receptionist was not dismissed pursuant to the consideration in s386(1)(a) of the Fair Work Act.

The commission found the employer was not unreasonable in its refusal to accommodate the receptionist’s request to work only four hours per day, and to have most, or all, of each school holiday off work.

The employer had met all its obligations to respond appropriately to what it understood was a flexible working arrangement request.

The commission found that the employer's conduct did not force the receptionist to resign and found no dismissal at the respondent's initiative pursuant to s386.

The application was dismissed.

Read the judgment


Katie Phillips v Integrated Medical Solutions Group Pty Ltd (U2019/6222) [2019] FWC 6225
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