In 2024, over four years on from the Covid-19 pandemic, we are seeing employers pushing for greater office attendance. The recent decision of the Fair Work Commission in Shane Gration v Bendigo Bank [2024] FWC 717 on 18 April 2024 offers reassurance to employers seeking to enforce a return to office policy.
The Commission upheld the employer’s refusal of an employee’s request to work permanently from home and acknowledged the advantages of face-to-face interaction and collaboration in the office.
If your business is considering implementing a return to office policy, this decision provides useful guidance on how to navigate the challenges of bringing employees back into the office.
Background
In January 2022, as the Covid-19 lockdowns came to an end, like many employers, Bendigo Bank began discussions with their staff regarding hybrid working arrangements. In a bid to encourage their employees to return to the office, Bendigo Bank released a hybrid working policy which required employees to come into office on milestone days, such as birthdays.
Following formal discussions, on 4 July 2023, Bendigo Bank informed their staff that they must return to the office for at least 2 days per week.
Employee’s flexible work request
In response to the hybrid working policy, Mr Gration made a request for flexible working arrangements under the Fair Work Act 2009 (Cth) to work permanently from home on the following grounds:
- He was a ‘carer’ under section 65(1A)(b) of the Act as he provided full time care for his wife who suffered a severe foot injury; and
- He is a parent and has responsibility for the care of his daughter, who is of school age under section 65(1A)(a) of the Act and, who has recently been diagnosed with ADHA and required uniformity in her day-to-day routine.
Interestingly, Mr Gration provided evidence that his wife teaches 15 high intensity yoga classes per week, necessitating his presence to be home to assist his wife as she recuperates. Mr Gration claimed that his wife’s workload was such that she needed to recuperate after these classes, and he needed to be home to assist her.
Mr Gration also contended that his request should be granted because he was able to satisfactorily complete his work at home.
Employer’s refusal of the request
Bendigo Bank refused Mr Gration’s request on the following basis:
- Mr Gration did not meet the requirements under section 65(1A)(b) of the Act – that is, the definition of a ‘carer’ within the meaning of the Carer Recognition Act 2010 (Cth); and
- While Mr Gration is a parent of a child who is of school age, the request to work permanently from home did not relate to this relevant circumstance and appeared to be merely a means of avoiding coming into the office.
Bendigo Bank further asserted that their refusal was made on reasonable business grounds. Bendigo Bank referred to the benefits to the business and employees returning to work in the office – which was accepted by Commissioner Platt - including:
- Establishing and re-establishing relationships, connections and networks within teams;
- Enhanced collaboration both within and across teams;
- Increased effectiveness of learning; and
- Enhanced wellbeing from greater social interactions and work life separation.
What was the Commission’s view?
Commissioner Platt agreed with Bendigo Bank’s position that there was no need for Mr Gration to work permanently from home to deal with his carer’s responsibilities.
The lack of medical evidence presented by Mr Gration in relation to his wife’s injury and the level of support reasonably required left the Commission unable to determine whether he is a ‘carer’ within the meaning of the Act. Commissioner Platt also considered his wife’s ability to undertake yoga sessions to be “at odds with his contention that he needs to be constantly home to assist her”.
Similarly, with limited evidence of Mr Gration’s parental responsibilities, Commissioner Platt concluded that parental/carer’s leave would be a sufficient option for Mr Gration to provide care to his daughter in these circumstances.
Importantly, Commissioner Platt concluded that even if Mr Gration could meet his workload requirements from home, there are “benefits of face-to-face interactions and employee collaboration” in the workplace and that “[t]he employment relationship is a two-way street”.
Lessons learned and how can we help
This decision follows an earlier judgement of the Commission, where in the case of Charles Gregory Gregory v Maxxia Pty Ltd [2023] FWC 2768, Commissioner Platt again found in favour of an employer’s refusal to accept their request to work permanently from home, on grounds that the decision was made on “reasonable business ground”. If you wish to read the decision, please find the full judgement here.
In light of these recent decisions, we recommend undertaking a legal review of current flexible work or working from home policy. It is helpful to include in those policies, the requirement for employees to provide evidence to demonstrate a direct link between their relevant circumstance(s) which fall within section 65 of the Act and the need for a flexible working arrangement. If insufficient evidence is provided, the Commission may find that the employee does not in fact have a statutory right to request for flexible working arrangement.
The mere fact work can be completed satisfactorily from home does not prevent an employer from refusing a request on reasonable business grounds as the Commission recognises the benefits of employees working in the office.
For advice regarding how to respond to a flexible working arrangement request, or if you are seeking advice in relation to your current flexible work or working from home policy, please contact a member from our Workplace Relations, Employment and Safety team.
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