After the Wave: Handling Work From Home Requests Post-Lockdown

Last month in Hair v State of Queensland (Queensland Health) [2021] QIRC 422, the Queensland Industrial Relations Commission (QIRC) handed down in relation to an employer’s rejection of a Human Resources Advisor and acting Workplace Relations Advisor’s request for a flexible working arrangement after working wholly remotely during the pandemic. The QIRC confirmed the decision on appeal and found that the employer’s rejection of the request was fair and reasonable.

This decision is a useful precedent in terms of how a workplace commission will deal with disputes regarding requests for flexible working arrangements in the post-lockdown era. With tentative indications that the current wave in NSW may be subsiding, employers are already planning employees’ return to the office and, at a minimum, hybrid working arrangements which will require at least some attendance at the office. As this decision indicates, the mere fact that employees have been working from home during the pandemic is no indication that an employer is obliged to grant a request for a flexible working arrangement to allow an employee to work remotely on a full-time basis.

Facts

The Appellant was an employee of Queensland Health in the position of Human Resources Advisor and acting Workplace Relations Advisor at the West Moreton Hinterland Hospital and Health Service.

From late March 2020, the employee had worked wholly remotely (save for three days). There had been no performance issues identified – on the contrary, she was advised in a performance review that she had exceeded or met all leadership standards. In September 2021, the Appellant made a formal flexible working arrangement request to work remotely from NSW. This would enable to the Appellant to relocate with her partner to NSW, where her partner was starting a new job.

In denying the request, the employer’s Human Resources Manager (HR Manager) noted that while the Appellant could certainly complete some of her duties remotely, a range of work tasks would be very difficult to do remotely. For example, in-person attendance on interview panels, providing in-person coaching assistance, and giving performance feedback.

The HR Manager also acknowledged that while the Appellant could travel back to QLD, working remotely on a full-time basis would unfairly create more work for her colleagues if in-person requirements were needed on short notice, for example attending a QIRC hearing or to respond to client requests. An imbalance would further be created as the Appellant would not be able to provide the same emotional contribution in her role as her colleagues.

A further factor in the decision to deny the request was that even though the current group of clients may be satisfied with dealing with the Appellant remotely, new clients in the future may strongly prefer in-person interactions.

Appeal and Decision

The Appellant lodged an appeal notice with the QIRC. The QIRC was required to consider whether it was fair and reasonable for the employer to deny the employee’s request for a flexible working arrangement. Industrial Commissioner Samantha Pidgeon determined that the employer’s denial was in fact fair and reasonable.

In reaching her decision, Pidgeon IC acknowledged the way work had been performed during the pandemic. That is, a full-time remote basis. However, the Industrial Commissioner stated that despite these arrangements, there remained many aspects of the Appellant’s role that required in-person attendance. Pidgeon IC noted that while an employee may have a preference to work in a particular way, this needed to be balanced with the operational requirements of the employer.

The Industrial Commissioner also noted that it was not unreasonable for the Appellant’s employer to consider the implications of the broader team and the imbalance that would be created if work could not be equitably shared and if other team members had to step up to take on work that required in-person attendance at short notice.

Further, the Industrial Commissioner took into account the contention that clients may not have preferred in-person attendance. However, Pidgeon IC’s response to the Appellant’s submissions was that there would certainly be times when the most “appropriate, productive or preferred way” of providing a service (bring human resources advice and support) would be face-to-face.

Accordingly, the Industrial Commissioner confirmed the employer’s decision to refuse the flexible working arrangement to enable remote work from interstate.

Key Takeaways

As set out above, this decision is not a binding precedent and does not illustrate the outcome for all requests for flexible working arrangements relating to remote work. However, the decision provides useful guidance in relation to how an employer should handle a working from home request.

Some key considerations include:

• What are the inherent requirements of the role? E.g. are there elements of the role that are heavily reliant on interactions with other persons, the requirement to attend multiple sites (particularly at short notice) or require some kind of emotional contribution?
• Even if the requirements of the role can be performed remotely – is the most appropriate, productive and/or preferred way in-person? Does in-person performance of the role generate better outcomes for the employer and/or clients?
• How would approving such a request impact the broader team? Would it create more work for colleagues? Will it disrupt team cohesion or disrupt collaborative work?