Employee Rights

Daily Archives: October 6, 2021

What are flexible working arrangements?

Many companies have flexible arrangements, to keep good employees, to be seen as a best practice company

Flexible Working Arrangements? Entitled?

The very thing I will state is don’t be dismissed over not be flexible in the workplace. You could have lost your income over something that could been solved. Sometimes in the workplace “you have to give a little bit, to get a lot”. Lets explore what you the employee and the employer are entitled to and can or cannot do.

What are flexible working arrangements?

For many employees, flexible working arrangements can be very valuable and ensure an their work is balanced with their personal commitments. These arrangements may include:

  • Flexible start and finish times
  • Compressed hours
  • Part-time work
  • Casual work
  • Job sharing
  • Flexible rostering
  • Working from home or another location
  • ‘Purchasing’ extra paid leave
  • Unpaid leave
  • Gradual increase or decrease in work hours (e.g. transitioning back to work after parental leave, or transitioning an employee into retirement)

Can I request flexible working arrangements?

Any employee can request flexible working arrangements. (you cannot be dismissed for requesting this). Though it is not guaranteed whether your employer has to accommodate your request. However, some employees have a legal entitlement to request flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth) (‘FWA’). There are two requirements that must be met.

Firstly, the employee must either be:

  • A permanent employee for at least 12 months; or
  • A regular casual employee for at least 12 months. With a reasonable expectation of continuing employment on a regular and systematic basis.

Secondly, the employee must be making the request for flexible working arrangements because they are:

  • A parent or guardian for a school-aged child or younger; or
  • A carer; or
  • A person with a disability; or
  • Aged over 55 years old; or
  • Experiencing family violence; or
  • Providing care or support to a family or household member experiencing family violence.

Furthermore, requests for flexible working arrangements must be in writing. Setting out the details and reasons for the change sought (s 65(3) FWA).

flexible-working-arrangement-everybody-is different
Not sure about your circumstances, give us a call, everybody is different

Can my employer refuse my request?

If an employee makes a request for flexible working arrangements, the employer has 21 days to respond to the request and state whether it has been granted or refused (s 65(4) FWA). Therefore, making a request for flexible working arrangements does not mean you are automatically entitled to receive them. Under s 65(5) FWA, the employer can refuse the request only if they have reasonable business grounds to do so, and must confirm the reasons for refusal in writing. Reasonable business grounds may include, though are not limited to:

  • The new working arrangement requested by the employee would be too costly for the employer;
  • There is no capacity to change the working arrangements of otheremployees to accommodate the request;
  • It would be impractical to change the working arrangements of other employees. Or to recruit new employees, to accommodate the request;
  • The new working arrangements would likely result in lost efficiency or productivity;
  • The new working arrangements would likely have a negative impact on customer service.

Many employees resign when your request is refused. This may or may not meet the test of being forced to resign (constructive dismissal). Get advice before you resign.

CASE EXAMPLE: Dee Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994

A case example of where an employer may reasonably refuse a request for flexible working arrangements occurred in the recent Fair work Commission case of Dee Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994, in which Ms Dee Sinclair made an unfair dismissal application following her dismissal on 25 May 2021 from Sunwise Constructions Pty Ltd.

Ms Sinclair was a full-time receptionist and office administrator for Sunwise Constructions for four and a half years. Sunwise Constructions Pty Ltd is a small business, owned and managed by Mr Wayne Elkin and his wife, Ms Elisa Elkin. The business had eight other employees.

While employed at Sunwise Constructions, Ms Sinclair was responsible for caring for her grandson, Blake, who had special needs. Ms Sinclair’s responsibilities as a Carer affected her ability to perform the requirements of her role, as she was unable to work the hours required of her. She was employed to work full-time, between 8-8.30am to 4-4.30pm, though was unable to work these hours throughout most of her employment. Even though there was no formal agreement, Sunwise Constructions allowed Ms Sinclair to work part-time, under 30 hours per week. Moreover, some of the hours were at Ms Sinclair’s choosing and outside of business hours.

An older employee can still have allot to contribute. Working part time, the company still gets the benefits of his experience, there is no need to make them redundant or dismiss them

An article I have written on Ageism in the workplace, in the AWNA web site may be of interest to you, click here

Consideration of the employees situation

Over several years, Sunwise Constructions was very considerate of Ms Sinclair’s personal situation and accommodated flexible working arrangements where needed, including allowing time off, altered work hours, having children in the office, and allowing her to forward office calls to her mobile.

However, Sunwise Constructions financially struggled in 2020 and required maximum work efficiency to ensure the business stayed afloat. In particular, Sunwise Constructions sought to streamline their processes. By having all administrative matters go through the office. As noted by Fair work Commissioner O’Neill at paragraph 13 of the decision, “In this context, Ms Sinclair’s irregular attendance and hours for the business was no long sustainable.” Commissioner O’Neill noted that although the company had been accommodating of Ms Sinclair’s personal situation.

Ms Sinclair’s work hours, efficiency and reliability and significantly declined over the past few months, which was having a negative impact on the business. In respect of this situation, Ms Sinclair was given a warning that she must meet the onsite presence requirements of her role, which was particularly important given her role as office staff.

Eventually, Ms Sinclair’s employment was terminated when she indicated she was unable to work the hours required of her. Although Ms Sinclair had requested flexible working arrangements due to her Carer’s responsibilities. It was not sustainable for the business for her to work reduced and sporadic hours. Commissioner O’Neill decided that there was a valid reason for the dismissal, summarizing as follows at paragraph 31:

“Simply put…Ms Sinclair had long struggled to juggle the demands of the position with her significant personal demands. and an impasse had been reached. The business couldn’t sustain having the position held by someone who couldn’t fill it properly as it was affecting the viability of the business and everyone’s employment.”

Commissioner O’Neil

In situations such as this, a refusal to accommodate flexible working arrangements may be justified.

If my request was unreasonably refused, what can I do?

When you have made a request for flexible working arrangements that you believe was unreasonably refused, you may be able to take action in the Fair work Commission. If you were dismissed from your employment in relation to your request, you may be entitled to commence either an Unfair Dismissal claim (F2 Form) or a General Protections claim (F8 Form). If you are still working at the Company but have been subjected to unfair treatment since making the request, you may be able to commence a General Protections Not Involving Dismissal claim (F8C Form). For the purposes of a General Protections claim, requesting flexible working arrangements will likely constitute an exercise of a workplace right, and may also be considered discrimination if the request was in response to a disability, family or Carer’s responsibilities, or age.

Conclusion: What are flexible working arrangements?

A Whole New Approach are not lawyers are Australia’s leading workplace advisors, we advise in all states. Give us a call the advice is free and confidential 1800 333 666. We are experts in all things to do with the workplace. We are here for you, make the call, prompt, confidential advice today. Any Fair work Australia matters, workers rights, employment rights. We work Australia wide, including Victoria, NSW, Qld

A article on workplace rights that may be of interest for you, click here

An article on abandonment of employment, click here

Dismissals list. Don’t be on it, be flexible, click here

Its tough out there, be flexible, it can lead to increased opportunities, this assumption of automatic negativity is no good for anybody

Dismiss me? Pending Court Cases Over Mandatory Vaccination

Vaccination and the ability to work is in the media everyday, can you be dismissed is hotly debated

Dismiss me? Pending Court Cases Over Mandatory Vaccination

As of the mid April 2022, the issue of vaccination is still controversial. Possible it will never be resolved. Lets briefly revisit the debate and seed what we have lean’t so far.

Can they dismiss me?

We are getting numerous calls daily as to whether employees have to be vaccinated. Its not for us at A Whole New Approach to decide what’s best for you. Other than I’m indicating listen to the science. However even this is being debated. I’m surprised how many new scientist that have evolved since the COVID-19 crisis has started. “Dismiss me? Pending Court Cases Over Mandatory Vaccination”. Lets now answer the question without the emotion.

What does the Government and The Courts Say

Dismiss me?, what’s the Govt, and courts say. The Australian Government has mandated the vaccination of residential aged care workers and hence, being vaccinated against COVID-19 becomes a condition of work. Or “inherent requirement” of the role.  Accordingly, state government-mandated vaccination requirements for certain roles or industries, would have the same effect of determining that a COVID-19 vaccination is an inherent requirement of the role. For instance, the New South Wales (NSW) and Queensland (QLD) Governments have announced that COVID-19 vaccinations are mandatory for health care workers. They must have received at least one dose by 30 September 2021, unless an exemption applies.

Dismiss me?

If an employee refuses to be vaccinated in accordance with the federal and state government-mandated vaccination requirement, the employer will have grounds to dismiss the employee. They cannot perform the inherent requirements of the role. If the employee cannot be vaccinated due to medical or other reasons, which constitutes a disability for the purposes of anti-discrimination laws.  They can also likely be dismissed, provided there are no reasonable adjustments that the employer could make that would enable the employee with the disability, to continue their employment.[1] 

Many non vaccinated employees feel they have lost their rights to work. But 95% of the population have voted to get vaccinated, by being vaccinated. They have rights to feel safe. Its all being played out in the courts and the tribunals, presently the unvaccinated are losing.

Public Health Orders and dismissals

As it currently stands, the Public Health Orders are enacted under delegated legislation provisions, which are contained within each State’s respective Public Health Act.  Delegated (also known as subordinate) legislation is legislation made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Consequently, a number of employee are challenging the rationality and legality of a vaccine mandate in the NSW Supreme Court. QLD Supreme Court and Queensland Industrial Relations Commissions (QIRC).

The common thread amongst these disputes is that employees claim that Parliament would not have intended to give the Health Minister “the powers to breach bodily integrity” without clear legislative indication. These numerous cases are currently pending in the state courts. Many people are eagerly awaiting a determination or outcome of these court actions, due to their opposing view on these mandates.

This then begs the question, can I ask my employer to hold off on executing these mandates, in hope of them being rendered invalid by the pending court actions? The answer to this question in short is no. These court actions, although pending, have not yet rendered the current mandates invalid or illegal. Thus, even if there is a pending action which attempts to challenge the validity of such mandates, it is in essence only pending and we should not hold our breaths.

Dismiss-me?-Pending-Court-Cases-Ove- Mandatory-Vaccination
These are difficult untested times, your health matters, so is having a job. Im seeing some seriously good / important careers go don’t the toilet over all this.

Your employer reserves the right and is obligated to enforce the mandates

Your employer reserves the right and is obligated to enforce the mandates as they currently stand. Regardless of the potential of them being rendered invalid. When an employer makes the tough decision to terminate an employee for refusing the jab. The employer has to look to what the laws and mandates are at the current time. What is in the mind of the decision maker, is a highly important factor when establishing a valid reason for dismissal and as it currently stands, these mandates are valid.

With this being said, if your employer terminates your employment and in the event these mandates happen to be rendered invalid, you can always reapply for your job or reinstatement through an unfair dismissal claim.

The purpose of the unfair dismissal provisions

This is to establish a framework for dealing with unfair dismissal that balances the needs of business (including small businesses) and the needs of employees, to establish procedures which are quick, flexible and informal. Address the needs of employers and employees and to provide remedies where a dismissal is found to be unfair, with an emphasis on reinstatement. If these mandates are rendered invalid, then the valid reason for the dismissal is rendered invalid and the dismissal may be rendered harsh, unjust or unreasonable.

If this is the case, the employee can lodge an Unfair Dismissal claim (Form F2), with the Fair work Commission, within 21 days after the termination takes effect and the Commission may allow a further period for lodgment in exceptional circumstances. This means if you are outside the 21 days but the reason for the delay is the pending court action which rendered the mandates and thus dismissal invalid, then there may be an exception granted.

Fair work Australia (FWC) is overwhelmed with various claims relating to vaccinations, consultation disagreements, unfair dismissal type arguments

Fair work Commission will set the matter down for a conciliation conference

Once an application is lodged, the Fair work Commission will set the matter down for a conciliation conference. A private proceeding conducted by an independent conciliator. This conference is an informal method of resolving an Unfair Dismissal dispute in which an independent conciliator will assist the parties in exploring options for resolution. Help them to reach an agreement without the need for a formal hearing or court proceedings.

If the only reason for your dismissal is the vaccination, it is arguably that the trust and confidence in the relationship may not be broken and so reinstatement may be a viable option. In the alternative, an employee may be awarded compensation for the unfair dismissal itself.

Nevertheless, nothing is stopping an employee from reapplying for their job if a COVID-19 vaccination is no longer required. It is strongly encouraged however, that people do not hold onto the hope or faith that this requirement will magically disappear. Or be overruled. Everyone has the choice as to whether they get vaccinated or not. In the same way, your employer has the choice to terminate or refuse to hire, unvaccinated employees.

Dismiss me?, can they do it?

It is increasingly evident that proof of vaccination is becoming a condition or requirement for employment. This is even in the absence of mandates.

Dismiss me? Pending Court Cases Over Mandatory Vaccination, the topic is controversial and emotional for many. I understand that, these are crazy times for us all. Questions about dismiss me? A Whole New Approach are not lawyers, what we are is the nations leading workplace advisors. AWNA are happy to give you advice on unfair dismissals, general protections. Any of your personal circumstances in these difficult times, advice is free.

Termination of employment, diversity in the workplace, orders to stop bullying or sexual harassment. All Fair work Australia and Fair work Commission issues, all employment rights issues, give us a call. Call today on 1800 333 666. We work in all states, Victoria, NSW, QLD, WA, SA, Tas, NT

Articles on “Dismiss me? Pending Court Cases Over Mandatory Vaccination”

An article on pandemic rights and the workplace that may interest you, click here

Blog on COVID-19 and workplace rights that’s essential reading, click here

[1] DDA s.21(A).

    australian unfair dismissals
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