In a case that clarifies the extent of an employees ‘right’ to flexible work arrangements and its interaction with the protection from bullying at the workplace, a court has ruled against an employee who claimed that the business rejecting her Work From Home request amounted to bullying and directly resulted in a constructive dismissal.
The case hinges around a meeting in which the employees request to work from home was rejected, leading to a heated exchange that ended with the manager commenting “if you’re not happy then don’t be here”. Following the meeting the employee handed her work phone and car pass token to another employee and the business took this action as resignation of her employment.
The employee lodged an adverse action claim involving unfair dismissal. The claim alleged that the employees employment was terminated because she asserted a series of workplace rights and that the business discriminated against her and bullied her by unfairly refusing her request to work from home when her supervisor was allowed to work from home. The employee was seeking pecuniary penalties against the business.
The business raised a jurisdictional objection to the claim, arguing that the employee was not dismissed. The dismissal element was explored separately and the employee was found to be dismissed.
The case then proceeded to consider the adverse action element and the employees contention that her request to work form home was a protected right.
In ruling on the adverse action claim the Judge noted that “nothing in this case which establishes that [the employee] had either a legislative or contractual right to work from home. Merely because her supervisor..was permitted to work from home it does not follow that [the employee] was permitted to work from home or had a right or entitlement to do so. Her supervisor…was working at a different level, doing a different job, with a different level of experience, and for that reason the [business] were entitled to treat her differently when it came to working from home”.
Importantly the Judge also noted that there was no evidence of “discriminatory, bullying or harassing behaviour in relation to the conduct of the [business] in dealing with [the employee] request to work from home and the conduct of the meeting”.
Learnings for all businesses
“While this case helpfully clarifies that an employee does not have an intrinsic right to work from home, even when some of the business staff do have work from home positions, it also highlights the importance of proper consideration of flexible working arrangement requests, as well as the careful communication of any acceptance or rejection of such requests”, explains ACAPMAs Elisha Radwanowski.
“The Judge in this case called out the business for fumbling the meeting with the employee where it rejected her request, and further highlighted the deficiencies evidenced in the termination of the employee after the meeting, particularly the categorisation of it as a resignation without documentation or confirmation”, continued Elisha.
“What all businesses need to take away from this case is that the don’t have to grant every work from home request they receive, but what they do have to do is consider each request on its merits and then formally respond. And if the response is a rejection, then the business needs to ensure that this rejection is delivered compassionately and must be ware of heightened meetings and heightened responses to avoid confusion and conflict at best, and court cases at worst”, concluded Elisha.
Here to Help
This article is general in nature and covers things to consider, implement and watch out for in your business. It is provided as general advice and you should seek further advice on your situation.
ACAPMA Employment Professionals are available to assist ACAPMA Members via employment@acapma.com.au. ACAPMA membership is affordable at only $860 inc GST per year for a single site and valuable with sites gaining access to ACAPMA Guides, Templates, Resources, HR advice support and representation as well as a raft of other benefits and discounts. Visit: https://acapma.com.au/membership/ to learn more or to apply for ACAPMA membership.
Elisha Radwanowski BCom(HRM & IR)
Executive Manager for Employment and Compliance
ACAPMA
