Work from home and in particular having to deal with requests that seem from the outset, outlandish, require some further thought and consideration before it is rejected.
The case of Hair v State of Queensland (Queensland Health)  QIRC 422, illustrates that the response to this inquiry might be contingent on the employer’s operational requirements and the feasibility of the proposed work from home arrangement. In this case, the employee asked the question – Can I work from home indefinitely?
The Queensland Industrial Relations Commission (QIRC) determined that Ms Hair, a Human Resources Advisor, should not be allowed to work remotely on a long-term basis.
The worker took her case to the Queensland Industrial Relations Commission after her employer rejected her request for greater flexibility in her work, namely to work from home on an indefinite basis.
Background to request to work from home
Ms Hair is employed by the State of Queensland as an HR Advisor/Workplace Relations Advisor for the West Moreton Hinterland Hospital and Health Service. Her work is located within Queensland.
When COVID-19 broke out in Australia, Ms Hair made the transition to full-time remote working. Until 26 March 2020, she only spent three days in the office. Ms Hair implemented a compressed hours schedule (four days instead of five), during which she continued to keep up with her usual standards and achieved outstanding results that were recognised during her appraisal in June 2021.
On 21 September 2021, Ms Hair asked to be allowed to work remotely from NSW, as her partner had accepted a job and they planned on moving there. She requested that she remain with the company full-time, but with altered hours, plus the chance to work in both Queensland and New South Wales.
The employer rejected Ms Hair’s plea to work remotely on a long-term basis. She then turned to the QIRC and appealed the decision.
Queensland Industrial Relations Commission sets out a future criteria to utilise
The employer’s decision to deny a request for flexible working was held to be fair and sensible. No issues were raised regarding the validity of the decision.
Commissioner Pidgeon judged it was justifiable to reject Ms Hair’s proposal for flexibility in her work. The verdict took into account prior practice, the developing necessities of the employer and the logistics of the desired arrangement. In particular the following criteria summarised the decision by the QIRC.
- The position of the employee (and their duties) requires careful consideration
- There are reasonable expectations for the employee to attend in person
- Notwithstanding what was provided during the pandemic (or previously) can this reasonably continue or does in person attendance ensure they can perform the inherent requirements of the position?
- Have reasonable alternatives been considered?
- What is the effect on other team members?
- Do the practical difficulties in accommodating the request become a scenario where it is impractical to approve?
The Queensland Industrial Relations Commission found the following in rejecting the appeal and finding no fault in the decision made by the Employer:
- The employer’s policy guidelines made it clear that flexible work won’t be applicable to all roles or work environments, including HR Advisors.
- Ms Hair was responsible for a range of tasks which necessitated her presence, such as serving on selection panels, offering advice and settling disputes. However, due to her NSW residence it was determined that she would be unable to attend such meetings at short notice.
- If Ms Hair was unable to attend to work for a hearing or meeting at short notice, it could leave other members of the team shouldering a greater workload. She also would not be able to provide support remotely with these extra tasks.
- Even though quarantine is not necessary and there are plenty of flights available, Ms Hair would need some lead time to come to the workplace in person. Commissioner Pidgeon declared that this would be totally unfeasible due to practical and operational concerns.
- Alternatives would be unfeasible in this situation, given that border restrictions necessitate a 14-day warning for attendance in person.
- Ms Hair offered HR support to health sector workplaces, even though some staff still attended on-site during the pandemic. It was found that requesting certain HR services be provided in person was not unreasonable.
Tips for Employers dealing with Work From Home requests (and generally flexible work requests)
Although there are some differences between award free employees and award (and enterprise agreement) covered employees there is a general requirement to:
- Discuss any request with the employee regarding the request
- Take into consideration:
- Needs of the employee
- Effect for the employee if arrangements were made
- Reasonable business grounds to refuse.
The key part for employers and HR is the term “reasonable business grounds”. The criteria set focuses on the following key factors:
- Cost (high cost)
- The effect on other employees’ arrangements
- new employees will be required to accommodate the arrangements
- there would be a significant loss of productivity or/and negative impact on client/customer service
To be frank, whatever business grounds put forward Employers and HR need to ensure that those arguments would satisfy a Commissioner. That is to say, whatever you put in writing a Commissioner will look kindly on the arguments put forward.
You will need to consider all of the above to have a chance at a refusal being supported by a Commission if it is challenged by an employee (and their representatives).
About the Author
Jonathan Mamaril leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.