Beware the consequences of not being flexible

The Fair Work Act 2009 (Cth) (FW Act) provides employees with a right to apply for flexible working arrangements if they meet certain criteria. Provided that an employer complies with the process for dealing with such requests, there is no direct mechanism under the FW Act for an employee to challenge their employer’s decision. But does that mean the reasons for a refusal are immune from scrutiny? A recent decision of the Fair Work Commission (FWC) provides a reminder that compliance with the procedural requirements under section 65 isn’t always enough.

In the case of Tawasoly v Alpha Flight Services1 an employer’s decision to refuse a part-time working request came under scrutiny as part of an unfair dismissal claim. In response to a change to his rostered hours, Mr Tawasoly made a request to reduce his hours from 38 hours per week to 36 hours to care for his children. His request was refused due to operational and staffing requirements and he was later dismissed for refusing or failing to undertake his contracted hours.

As part of his claim, Mr Tawasoly argued that his dismissal was unfair because his employer had failed to take all reasonable and proportionate measures necessary to accommodate his flexible working arrangements and dismissal was a disproportionate response. His employer argued that this was, in effect, an attempt to have the FWC determine Mr Tawasoly’s flexible working request, something which is not permitted by the FW Act.

Although the employer had complied with the procedural aspects of section 65, the FWC considered that the decision to refuse Mr Tawasoly’s flexible working request created the basis for his dismissal. It was, therefore, appropriate for the FWC to consider whether the employer had objectively justifiable reasons for the refusal.

Ultimately the FWC was satisfied that the employer had valid reasons for refusing the request and that the dismissal was fair. However, the decision confirms a further potential avenue, in addition to discrimination claims, for employees to challenge their employer’s refusal of a flexible working request and emphasises the need for employers to properly consider any requests and have sound business reasons for any refusal.

1Tawasoly v Alpha Flight Services [2017] FWC 813


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