In brief - The decision in Hair v State of Queensland (Queensland Health) [2021] QIRC 422 shows that the answer to this question may depend on the employer's operational requirements and the practicalities of the flexible working arrangement being requested 

In Hair v State of Queensland (Queensland Health), the Queensland Industrial Relations Commission (QIRC) found that Ms Hair, a Human Resources Advisor, was not allowed to work from home indefinitely. 

Employee appeals to Queensland Industrial Relations Commission after employer rejects her flexible work request 

Ms Hair works for the State of Queensland as an HR Advisor/Workplace Relations Advisor at the West Moreton Hinterland Hospital and Health Service. Ms Hair's role is based in Queensland.

As was the case with many workers in Australia, Ms Hair commenced working remotely full time following the outbreak of COVID-19 in Australia. Since 26 March 2020, Ms Hair has worked remotely, and has only spent three days in the office. During this time, Ms Hair was working compressed hours (full-time, but over four days per week). While working remotely and working compressed hours, Ms Hair met or exceeded all leadership standards, for which she was commended during her performance review in June 2021.

On 21 September 2021, Ms Hair submitted a request for flexible working arrangements to work remotely from New South Wales, as her partner was starting a job and they wished to relocate. Ms Hair requested that she be able to continue to work remotely on a full-time basis with compressed hours. Ms Hair also requested, in addition to the existing arrangements, that she be able to work between both Queensland and NSW.

The employer denied Ms Hair's request to work remotely indefinitely. Ms Hair then appealed this decision to the QIRC.

Employer's refusal of flexible work request found to be fair and reasonable

Commissioner Pidgeon held that it was fair and reasonable for the employer to deny Ms Hair's flexible work request. The decision took into account the way that work had been undertaken over the past 18 months, the emerging needs of the employer and the practicalities of the proposed arrangement. 

The employer's refusal of Ms Hair's flexible work request was upheld for the following reasons:

  • The employer's policy guidelines indicated that not all roles or work environments will be suitable for flexible work; this included HR Advisors. 

  • Ms Hair's role involved duties that were expected to be undertaken in person, including assisting on interview panels, providing coaching/guidance and resolving conflict. It was held that she would be unable to commute from NSW on short notice to fulfil these duties.

  • If Ms Hair was unable to attend to work for an in person hearing or meeting at short notice, it would be necessary for another member of the team to do so. It was found this may result in other members of the team taking on additional workload. Further, it was noted that Ms Hair would be unable to support her colleagues remotely with these additional 'in person' duties.

  • Even in a situation where quarantine was not required and there are up to 40 flights a day available, Ms Hair would require some notice if she needed to attend a workplace in person. Commissioner Pidgeon held that this would be unviable from a practical and operational perspective.

  • Any alternatives would be impractical, especially in the current climate when 14 days' notice of the need for attendance in person was/is a current requirement due to border restrictions.

  • Ms Hair provides HR assistance to workplaces in the health sector, where some employees continued to attend in person throughout the pandemic. It was held that it was not unreasonable for the employer to ask that some HR services be provided in person.

As Commissioner Pidgeon noted, "while an employee may prefer to work in a particular way, this needs to be balanced with the operational requirements of the employer." 

While the remote working approach taken as a result of the COVID-19 pandemic may have demonstrated that employees can work efficiently and effectively remotely, this decision indicates that employers can ask their employees for a balance of face-to-face and remote working. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.

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