Does an employee’s request for flexibility have to be approved?

By Robert Lamb, Director & Caitlyn Wessels, Graduate Law Clerk at Hillhouse Legal Partners
| 4 min. read

Key takeaways

  • Recent legislation means employees are able to request flexible working conditions from their employers in certain circumstances
  • An employer must consider the request seriously and try to accommodate the employee
  • If the employee’s request cannot be accommodated without negatively affecting the business, employers must provide alternatives
  • Employers do not have to agree to a request for flexible working arrangement if they cannot be reasonably accommodated

Recent changes to the law mean all employees, in specific circumstances, have the right to request flexible work from their employers. However, as a recent Fair Work Commission case demonstrates, there are limits to how far an employer must go to accommodate an employee's request.

In the case of Ms Katie Phillips v Integrated Medical Solutions Pty Ltd [2019] FWC 6225medical receptionist Ms Phillips requested her work conditions be changed from full-time to part-time following a family tragedy.

The request was made to work Monday to Friday between 10am and 2pm to allow Ms Phillips to drop off her younger sister to school and to pick her up each day.

Additionally, Ms Phillips requested guaranteed annual leave during school holidays.

The medical practice considered the request, and after both formal and informal communications, the employer confirmed in a detailed response that they were unable to accommodate her request.

The reasons given were: 

  • They required reception staff at opening/closing times as the practice was busier at those times
  • They could not prioritise her requested school holiday leave over the many other working parents in the practice
  • It would result in significant additional costs for the practice to hire casual staff to cover opening and closings over the school holidays
  • It is often hard to hire casual employees over the school holidays

The employer offered a compromise where Ms Phillips was able to choose one of three options:

  1. She could work 8:30am – 2:30pm Monday to Friday and apply for annual leave on an equal basis with the other reception staff; or
  2. She could be employed on a casual basis - being that they had no obligation to offer her work, but she also had no obligation to accept work; or
  3. She could maintain full time work

Following the tragedy, Ms Phillips was on extended personal leave and had not returned to work.

On more than one occasion, the employer stated in writing that Ms Phillips would always have a job with the practice.

Ms Phillips chose not to accept any of the three options presented by her employer. The medical practice confirmed there would always be a position for her at the practice, but her terms of employment would need to be one of the three available options. 

With the offer being met with no response from Ms Phillips, her employer contacted her in writing to ask for an answer and providing a date by which they needed the answer so they accommodate it. They stated that if they did not hear from her, the assumption would be made that Ms Phillips would not be returning to work at the medical practice. 

An agreement was not reached and the employee made an application to Fair Work the employer alleging her dismissal was harsh, unjust or unreasonable. 

Ultimately the Fair Work Commission found that the employer did not terminate the employment and there could not be an unfair dismissal. 

In coming to that conclusion, the Commission also found that while these were dreadful circumstances, the employer had acted reasonably to ensure that Ms Phillips kept her job and the employer simply could not accommodate her request.

The key point from this case is that although an employee has the right to request flexible working arrangements, the employee can reasonably refuse the request.

If your organisation receives a similar request from an employee, it is best practice to: 

  1. Formally acknowledge, in writing, the employee’s request and allow time for you to properly consider the request;
  2. If the employee’s request is reasonable, accommodate them as best as you can;
  3. If you cannot accommodate the employee's request, clearly outline the reasons for the decision and provide a reasonable alternative option as a compromise; and
  4. Make an official offer in writing to the employee outlining their original request and the options you are able to provide.

An employer must be able to show that they have acted reasonably throughout the process and given the employee an opportunity to respond and negotiate.

If you need assistance with how to navigate any employment issues, we can provide you with tailored advice for your organisation.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.