Flexibility in the workplace was too much of a stretch

In a recent decision of the Fair Work Commission, the Commission found that a workplace that offered “a lot of leeway” to an employee who requested significant flexible arrangements did not act unfairly or harshly by terminating her employment when the arrangement was no longer tenable.


Ms Sinclair was employed as the full time office administrator/receptionist at Sunwise Constructions Pty Ltd.  Sunwise was under the Fair Work Act, a “small business”, having fewer than 15 employees. 

During the five years she was employed at Sunwise, Ms Sinclair was responsible for caring for her grandson with special needs.  As a result, Ms Sinclair often sought and had approved by Sunwise, flexible work arrangements which included taking time off work, working altered hours, and from time to time bringing her grandson into the office or diverting calls to her mobile when caring for the grandson at home.  Reciprocally, Ms Sinclair sometimes came to work at 4am to attend to tasks in the office.

These arrangements were approved by Sunwise despite them being contrary to Sunwise’s requirements to have an office administration/receptionist working full time in the Sunwise office.

In early 2021, Ms Sinclair’s requests for flexibility became more frequent and her hours of work further declined.  The irregular attendance and reduced hours of work by Ms Sinclair placed a significant financial strain on Sunwise.  As a result on 19 April 2021, Sunwise told Ms Sinclair that unless she could commit to performing all her work in the office, during set hours, it would need to employ someone else.

In response, Ms Sinclair requested a further reduction in hours to allow her to take her grandson to therapies.  Sunwise refused that request repeating that it required someone to work in that position full time. 

Ms Sinclair then sought, via email sent at 6pm on a Sunday, to take between four and six months unpaid leave to “put everything in place” for her grandson, and said that she would be on annual leave for the whole week due to stress and anxiety.

On the Monday morning after, Sunwise advised Ms Sinclair that it could not approve the leave and it required her to attend the office for work.  Ms Sinclair responded by providing a medical certificate and said she was “currently on medical leave and believe that I am able to use annual leave to cover short failings [sic] in sick leave”. 

In the context that it had recently advised Ms Sinclair about the prospect of employing someone else, Sunwise then terminated Ms Sinclair’s employment the same day stating that Ms Sinclair did not have capacity to do the job for which she had been employed.

Claim for unfair dismissal

Ms Sinclair claimed that she had been unfairly dismissed because she was entitled to request leave and to vary her employment arrangements.  She also said that an operative reason for her dismissal was her request for time off which related to her carer responsibilities, and the notification that she was off work on a medical condition.

Sunwise said that the decision to dismiss Ms Sinclair was not prompted by the leave request or sick leave, but by the inability to reach a resolution with Ms Sinclair about her hours of work in a way that worked for the business.

The Commission held that Ms Sinclair’s dismissal was not only consistent with the Small Business Fair Dismissal Code, but in any event not harsh, unjust or unreasonable.

Lavan comment

Section 65 of the Fair Work Act states that an employee may make a request for flexible working arrangements in particular circumstances, and that such request can only be refused by their employer on “reasonable business grounds”.

Pursuant to section 65(5A) of the Act, such reasonable business grounds include the following:

  • new working arrangements requested by the employee would be too costly for the employer;
  • there being no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
  • it being impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
  • the new working arrangements requested by the employee being likely to result in a significant loss in efficiency or productivity; or
  • the new working arrangements requested by the employee being likely to have a significant negative impact on customer service.

The list above is not exhaustive.  Hence any proper and reasonable business ground is available to be raised in this context. 

The Commission in this case found that “Ms Sinclair was trying very hard to a balance and meet the competing demands on her time.  [Sunwise’s directors] had been exceptionally flexible and considerate of Ms Sinclair’s situation, but there came a point where for the sake of the business and everyone’s employment, the situation became untenable.  This was unfortunate, but in my view, [Sunwise’s directors] acted entirely reasonably.”

Even though this decision applied to a “small business”, it illustrates that the requirement for flexibility even for a large business is not unlimited, especially where the business is impacted unreasonably.

If you would like to discuss flexible working arrangements in your workplace, please do not hesitate to contact Lavan’s Employment and Safety team.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.