Thinking | 19 May 2017

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

Contact

Oliver Jankowsky

Partner & Head of International Practice

Ed Paton

Partner & Head of SE Asia Practice

Eugene Chen

Partner & Head of China Practice

Melanie Smith

Director - Business Development, Marketing and Communications

Natalie Bannister

Partner & Commercial National Practice Leader

Rhett Slocombe

Partner & Insurance National Practice Leader

Katie McKenzie

DIRECTOR - PEOPLE & CULTURE

James Bull

Special Counsel and Head of Frank

Melanie James

People & Culture Manager

Jacqui Barrett

Partner & Head of US Practice

Paul O’Donnell

Consultant & Head of Energy

Christopher Brown

Partner & Head of UK Practice

Lauren Parrant

Senior People & Culture Advisor, as at 1 July 2022

Melinda Woledge

Marketing & Communications Manager

Jasmine Koh

Senior Associate and Head of Frank

Alison Choy Flannigan

Partner & Leader, Health & Community

Billie Kerkez

Manager – Smarter Recovery Solutions

Peter Jones

Senior Commercial Counsel

You might be also interested in...

Employment & Workplace Relations | 22 May 2017

Sex discrimination claim sails on

A 16 year old female sailor, who was excluded from participating with her father in a ‘men’s 49er class’ sailing event at a world sailing regatta held in Melbourne in December 2014, has won the right to pursue a sex discrimination claim against Yachting Victoria.

Employment & Workplace Relations | 30 May 2017

$6 million profits to be handed over following confidentiality breach

Two employees of Lifeplan breached their fiduciary duties to their employer by approaching a competitor, Foresters, with a business plan that contained Lifeplan’s confidential information.