Fair Work delivers WFH win for employers

Sarah Gee

Charles Gregory Gregory v Maxxia Pty Ltd – A dispute about the right to request for flexible working arrangements

In a decision that employers will find more comforting than a heated toilet seat, Fair Work has delivered a WFH win for employers. In a decision out this week, the Commission said that if an employee’s contract says they must work in the office, an employer is within their rights to require its employees to return to the office. It is considered appropriate now with Fair Work recognising that the pandemic has mostly passed. Subject to a few other qualifications being met of course.

This is the first notable case we have had under the new flexible work laws that came into effect on 6 June 2023. For a reminder of how these work, refer to our earlier article here: Curium blog: Flexible Working Requests.

The case was brought by an employee who had two characteristics which potentially allowed him to make a flexible working request. Those characteristics were that he:

  1. was caring for a young child
  2. had inflammatory bowel disease which required frequent trips to the bathroom.

The employer had a flexible working policy which required 40% working from the office. The employee didn’t want to work from the office at all because he wanted to be able to care for his son and have the comfort of his own bathroom to deal with his “urgent and frequent” poop predicaments.

Fair Work made it clear that not only does an employee have to have one of the characteristics in order to make a request but there must also be a nexus between the request and that characteristic. This is important because a lot of the advice we’ve been giving in this space shows employers are worried about saying no because their employees have the characteristics, even if they don’t have a direct nexus with the request being made.

Back to our unfortunate worker. His employer offered him changed start and finish times to accommodate his caring responsibilities. They also offered to change his desk to be closer to the bathrooms. While the employer tried to flush out a compromise, it seems they couldn’t find common ground, leaving both parties stuck at log-gerheads and in a bit of a legal constipation. It is also worth noting that the employee wasn’t meeting his KPIs at the time and the employer wanted to support him to do that within the office environment.

Importantly, the Commissioner gave significant consideration to the fact that the employer:

  • genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances,
  • had regard to the consequences of the refusal for the employee; and
  • had reasonable business grounds to support the refusal.

This case confirmed that process is absolutely king and impeccable (toilet)paperwork is needed to get you through. Had the employer not followed processes to the letter, we may have had a very different outcome. I bet they’re feeling the same relief as securing the last roll of toilet paper in a pandemic panic-buying spree.

Every case turns on its individual factors so don’t make any decisions without professional help. We’re all over these developments and ready to talk you through what you need to do. Curium Legal works exclusively with businesses and advises on all things business law related. Book an appointment with us online via: calendly.com/curiumlegal

The case of Charles Gregory Gregory v Maxxia Pty Ltd – [2023] FWC 2768 is available in full text here.