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FWC Upholds Employer’s Direction to Require Employees to Return to Work from the Office

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Following a decision made by the Fair Work Commission on 24 October 2023, employers can be more confident in requiring employees to cease their working from home arrangement and to return to work at the workplace in accordance with the relevant employment agreement.

Background facts

The applicant, Charles Gregory worked for Maxxia Pty Ltd (Maxxia), under terms of an employment contract that required Mr Gregory to work full time from the office. As a result of COVID-19 restrictions in 2020, Mr Gregory was directed by Maxxia to undertake his employment from home.

After COVID-19 restrictions were lifted, Maxxia sought to enforce their hybrid working guidelines policy, which required its employees to work at least 40% of their hours at the office.

On 17 August 2023, Mr Gregory submitted a flexible working arrangement request to Maxxia, seeking to work 100% remotely from home on an ongoing and permanent basis. Mr Gregory supported his request on two grounds, namely that he suffered from an inflammatory bowel disease and was the parent of a child which he cares for every second week.

Maxxia rejected Mr Gregory’s request citing reasonable business grounds which included the need to uphold client service quality, ailing productivity concerns, team culture, equal application of its hybrid working policy to all staff, and supporting Mr Gregory with mental wellbeing.

After rejecting Mr Gregory’s request, Maxxia proposed to:

  1. Allow Mr Gregory to work from home 80% of the time until the end of September 2023, and then 60% of the time from 2 October 2023.
  2. Allow Mr Gregory to allocate his office days to the week that he does not have custody of his child;
  3. Provide flexibility over his working hours and breaks, to allow him to collect his child from school;
  4. Move Mr Gregory’s work desk closer to the office toilet.

Commission findings

The Commission held in favour of Maxxia’s rejection of Mr Gregory’s work request on three fronts:

  1. The medical evidence provided by Mr Gregory relating to his inflammatory bowel disease was, while an inconvenience, insufficient to constitute an employee as having a disability under s65(1A)(c) of the Fair Work Act 2009 and in the normal context of the word.
  2. There was an insufficient ‘nexus’ between Mr Gregory’s request to work from home 100% of the time and his need to care for his child every second week.
  3. There are reasonable business grounds for face to face contact within the workforce team, including that:
    • a face to face presence would allow for observation, interaction and (if necessary) coaching to improve Mr Gregory’s productivity and provide him with greater support; and
    • Mr Gregory’s knowledge and experience could be more easily accessed by less experienced team members face to face.

Impact

This decision is one of the first to be considered under the Fair Work Commission’s new powers to review a flexible working arrangement refusal by an employer, and provides some guidance to employers on how to approach flexible work arrangement requests under the new regime.

If you have any questions in relation to this article or employment practices in general, please contact the MST LawyersEmployment Law team on +61 3 8540 0200 or email workplace@mst.com.au.

Full case citation: Charles Gregory Gregory v Maxxia Pty Ltd [2023] FWC 2768