Remote work has become so common that you’d be forgiven for thinking it’s an employee’s right to work from home. This ruling shows why that’s not the case.
After an HR advisor based in Queensland submitted a request to permanently work from home last September, her application was denied shortly after.
The employee expressed her intention to relocate and work remotely from Sydney, where her husband had been temporarily posted on a military assignment. She planned to travel to Queensland for in-person work as needed.
Although the advisor had worked from her Queensland-based home throughout the pandemic, the employer, a Queensland government body, argued this arrangement was not feasible in the long-term because she may be needed for face-to-face contact at short notice, and some tasks “would be very difficult to do remotely”.
The employee appealed the decision to the Queensland Industrial Relations Commission, and a ruling was handed down upholding the employer’s refusal.
Chris Hill, Principal Solicitor and Founder of Stadium Legal, says this case throws into question “some of the arguments often made in the general media about how everyone can be digital nomads and work from home or work whenever they want. For some industries it just doesn’t work”.
“Obviously if you’re a tradesperson, for example, it’s very clear cut,” he says. “But even for some [predominantly] office-based roles like HR that allow people to do a lot of the work from home, the Commission’s finding shows that face-to-face [interactions] are still important.”
Reasons for refusing work-from-home request
The employee’s request – not just to work from home, but to work remotely in a different state and travel to Queensland as required – had a significant bearing on the employer’s decision to reject the request.
“If an employee has an HR issue, the employee might need an HR advisor there quite quickly. So for that reason, when looking at whether the refusal was fair and reasonable, the Commissioner said she was accepting the idea that an HR advisor might need to turn up at a meeting in Queensland quite quickly and they may not be able to arrange a flight from Sydney in time,” says Hill.
He also noted how a confidential online survey, conducted in January last year, helped the employer put forward a convincing argument.
“[The employer] asked HR’s client groups whether they preferred face-to-face communication, or whether they’d be happy to deal with their HR representative remotely,” says Hill. “The feedback was strong in supporting the idea that face-to-face contact is really important when you’re dealing with HR issues. The Commissioner definitely took this into account – that the employer was considering how many of its clients may need in-person attendance quite quickly.”
The Commissioner further agreed that another team member in the HR department may need to attend an urgent meeting in the employee’s absence. This could have the potential to overwhelm other team members, and create a sense of inequity within the team.
“I think employers would definitely be thinking about this sort of thing at the moment, saying we’re already down staff [in a labour tight market] so we can’t afford to not have staff in,” says Hill.
A spokesperson for the organisation involved in the case told HRM, “[We are] committed to building inclusive cultures that respect and promote human rights and diversity.
“We also support our workforce in flexible working arrangements with the aim to find the right balance between remote and onsite work to meet the needs of the community we serve and ensure our staff and our client groups are well supported.”
Public versus private sector
The employer adhered to its policy on flexible working requests, including that the employee be granted the opportunity to appeal the decision.
“That was really important,” says Hill. “If a flexible work decision is made by your company, and the decision is challenged, you should always make sure you can say that the policy has been followed.”
Hill explains that an employee has a right to appeal the decision in this particular case, but for private businesses that are subject to the Fair Work Act (FWA), the potential to appeal is more limited.
“The Queensland case was in the public service, so after the decision was made to refuse it, the employee could take it to the Queensland Industrial Relations Commission as an appeal,” says Hill.
“In the private sector, you don’t have an automatic right to file a claim about this. If you’ve got an enterprise agreement or employment contract that includes a dispute resolution procedure that ends up at the Fair Work Commission then employees could try appeal a refusal to grant the flexible work request, but in general, it’s a limited path if the employer says ‘no’.
“There are more parameters around flexible work requests under the FWA,” says Hill.
“The feedback was strong in supporting the idea that face-to-face contact is really important when you’re dealing with HR issues.” – Chris Hill, Principal Solicitor and Founder, Stadium Legal
The FWA stipulates that employees can make a flexible working request under a limited number of conditions, including if they’re a parent or carer, have a disability, are aged 55 or older, experiencing family violence or supporting a family member or co-resident living with family violence.
If the reason an employee is requesting remote work is just because they’d like to experience a sea or tree change, that wouldn’t automatically fall into any of the FWA’s buckets, says Hill.
“It would be easy for an employer to say that’s not a reasonable request and not to take it any further.”
If the employee’s request does come under one of the FWA’s categories, the employer will then consider if the request can be met under reasonable business grounds.
“This involves looking at why it could or couldn’t work for your particular role,” says Hill.
“If you’re going to say ‘no’, you need to explain why. There’s some criteria under the Act that you can use as an employer – that it might be too costly or it’s impractical to change the employee’s role because other positions in the company would need to be changed as well, or that there will be a negative impact on productivity or customer service.”
Full-time employees also need to have worked at a company for at least 12 months to make a flexible working request. Casual employees similarly need to have worked regular and systematic shifts for at least 12 months, says Hill.
Under the FWA, employers also need to respond to an employee’s flexible work request in writing within 21 days. This requirement applies only for employees who have a legal entitlement to request flexible working (i.e. they meet one of the conditions, such as being a parent or carer, or having a disability, as mentioned earlier in this article). If the request is being refused on reasonable business grounds, those grounds must be explained in the employer’s written response.
“That’s one positive obligation that the employer has to comply with. If you ignore it, then there could be a claim made that you’ve breached the FWA,” says Hill.
In the current climate of ever-changing COVID-19 restrictions, it’s also essential to consider any government mandates that could be in place.
“NSW recently had a public health order which said you had to let your employees work from home if it was reasonably practical for the employee to do so… There may be more public health orders to come in as the Omicron wave sweeps through. The government could introduce a work from home order which effectively trumps everything.”
Employers should also have regard to any applicable state based laws – for example, Victorian legislation – which can provide additional avenues for employees to challenge flexible work refusals.
The case speaks to the critical role that HR plays in supporting employees who are often dealing with sensitive personal or professional issues, says Hill.
“This case had considerations that are quite specific to it being an HR role. An HR advisor would have meetings that often have quite emotional components which can be best dealt with in person.”
But he notes the case has broader application to other professions and roles.
“I think this case is useful in thinking about other sorts of office-based roles too, especially for team managers who might need to lead face-to-face meetings.”
He also thinks face-to-face contact could be deemed necessary for other office-based employees, such as those working in a call centre where in-person supervision and group discussion might be necessary
“A role like that could have you supervising a lot of staff, and sometimes you need the ability for someone to jump up from their desk and come over and ask you something without having to quickly set up a Zoom meeting,” he says.
For employers that are hesitant to approve a permanent remote work from home request, Hill recommends they try and come to a halfway point, such as a fixed arrangement with some days in and some days out of the office.
This is critical in protecting an employer, should the employee be dismissed for refusing to attend the office, as they could have an unfair dismissal on their hands.
“In that situation, the court is going to look at the overall fairness of the decision. They’ll ask, ‘What else could the employer have done? Could they have offered the employee a different option? Could they do three days in the office and two at home?’… While the legislation might not strictly require this at this stage, it’s probably recommended that you sit down and actively think about how you can meet them in the middle,” says Hill.
“Maybe also look into the reasons they’re asking for flexible work… It’s easy for HR practitioners or lawyers to sit there and look at what the legislation says and whether someone falls into a particular bucket as a reason for their request, but as a best practice employer, I’d recommend going back to the employee and asking more to understand their needs.
“It might not be as simple as someone just wanting to be a digital nomad. Maybe they’ve had a really stressful period and need to move because of x, y and z.”
Meeting them in the middle could also entail granting the work-from-home request but with a sunset date or a trial period.
“A lot of employers do that by saying, ‘We’ll do a three-month trial and we reserve the right to end it if it’s not working for us,’” says Hill.
“Employers are well within their rights to say ‘no’. They should just make sure they comply with their policies and the legislation, provide written reasons, and get as much information from the employee before they turn down the request.’”
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