Fair Work rejects bank manager’s flexible work request

Fair Work rejects bank manager’s flexible work request

“Not a big fan of going into the office:”

Worker loses WFH appeal

Since 2023, Australian workers have had the right to take their employer to the Fair Work Commission if their flexible work arrangement request is rejected. We’ve already seen a number of flexible work disputes heard by the Fair Work Commission. 

In April 2024, the commission heard the case of a bank manager who admitted he was “not a big fan of going into the office.” The manager was only required to be in the office two days per week. But he did not want to come in at all, claiming that he had to care for his yoga instructor wife and a child with ADHD.

In this article, we explore the events of this flexible work arrangement dispute that was heard by the Fair Work Commission.

The right to make a flexible work arrangement request

Amendments to the Fair Work Act 2009 that took effect in June 2023 handed Australian workers the right to request work flexibility from their employer. An employer is required by law to provide a written response to the request within 21 days. And if they deny the request, they must provide reasons why. 

If an employee feels their employer unreasonably refused their request, they can apply to resolve their dispute with the Fair Work Commission. You can learn more about flexible work arrangement rights and the rules around making a request in our article.

Let’s look at two recent flexible work arrangement dispute sheard by the Fair Work Commission.

“Not a big fan of going into the office:”

Bank worker loses flexible work arrangement appeal 

A recent flexible work arrangement dispute heard by the Fair Work Commission is Shane Gration v Bendigo Bank [2024]. The case involved a bank manager for Bendigo Bank, Shane Gration, who in his submission to the commission said that he was “not a big fan of going into the office.” Mr Gration had began working for the bank in July 2021. His contract stated that his place of work was the bank’s Adelaide head office.

Before taking up the position, Mr Gration’s wife had suffered a foot injury that required a bone graft. He told the Fair Work Commission that his wife suffered from muscle cramps, joint stiffness, swelling and constant pain. She worked as a yoga instructor, running sessions for 15 hours per week. Mr Gration claimed that his wife needs time to recuperate from conducting yoga lessons, and therefore he needs to be at home to assist his wife.

Bank makes changes to flexible working arrangement

Mr Gration claimed that he told Bendigo Bank about his wife’s situation prior to accepting his job. He told the bank that her rehabilitation would take several years. He claimed that the bank told him that their stance on flexible work arrangements will be “fully flexible and negotiable.” And that none of its employees would be coerced back into the office once COVID-19 had passed. 

However, in July 2023 Bendigo Bank mandated that all employees had to return to the office for two days per week. The bank told the Fair Work Commission that it first mentioned the prospect of a return in January 2022. It had proposed a hybrid work model where employees would be in the office for events like team planning days, meeting new colleagues and celebrations.

Worker “did not feel comfortable” in office, complains to Fair Work

In October 2023, Mr Gration took his flexible working arrangement complaint to the Fair Work Commission. He argued that he was recognised as a carer under the federal Carers Recognition Act 2010, and therefore he had the right to work from home. 

In addition to caring for his wife, Mr Gration outlined that his daughter had recently been diagnosed with ADHD. He said this required her to have uniformity in her daily activities. He also shared that his daughter had chronic asthma.

Mr Gration also pointed out that he was one of the highest performers in his division. And that he was continually receiving praise by those within the bank and from customers. At the time he made his complaint to the Fair Work Commission, Mr Gration was attending the office once every two weeks. He claimed that when he was in the office, he was the only one from his team there. He said that “he did not feel comfortable and prefers working from home rather than being in the office.” 

Mr Gration argued that as he was a carer for his wife and a school age daughter, Bendigo Bank had unreasonably dismissed his flexible working arrangement request.

Fair Work Commission decides flexible work arrangement case

Later in October 2023, the Fair Work Commission organised a conciliation between Mr Gration and Bendigo Bank. This did not lead to an agreement, however, so Mr Gration’s complaint was escalated to a formal hearing.

At the hearing, the Fair Work Commission heard witness statements from several Bendigo Bank managers. One manager said that in-office days allowed employees to “bump” into each other. And that this allowed for “collaboration, trouble shooting, workshopping and coaching” that otherwise is not possible online. The manager argued that in-office days promoted “teamwork, people engagement, relationship building and networking.”

“Exaggerating his wife’s needs”: Fair Work shows scepticism 

The Fair Work Commission accepted that Mr Gration’s default place of work was Bendigo Bank’s Adelaide office, as stated in his contract. The commission had asked him to provide medical evidence of his wife’s condition. And a statement from her about her condition. However, Mr Gration failed to provide these. The commission was therefore unable to appreciate the extent of his carer duties for his wife.

“Mrs Gration’s capacity to undertake Yoga training sessions appeared at odds with his contention that he needed to be constantly home to assist her,” the Fair Work Commission stated.

Based on this, the Fair Work Commission stated that Mr Gration “could be exaggerating his wife’s needs” so he could avoid going back into the office.

“Only concerned about himself”: Worker did not meet definition of a carer

The Fair Work Commission determined that there was a lack of evidence to prove that Mr Gration met the definition of a carer under the Carers Recognition Act. It found that Bendigo Bank had acted appropriately by providing him access to carers leave or work from home privileges on days when he needed to care for his daughter.

The bank’s “accommodating” stance towards the carer needs of Mr Gration were acknowledged. The Fair Work Commission said that reviewing an employee’s flexible work arrangement request “involves the balancing of each party’s needs.” It deemed Mr Gration to have “not been so accommodating,” positing that he “appears to be only concerned about himself.”

fair work recent case studies Australia

“The employment relationship is a two-way street”

In the end, the Fair Work Commission favoured the evidence of Bendigo Bank, labelling that provided by Mr Gration as “inconsistent, largely uncorroborated and overall unconvincing.” It acknowledged the benefits of face to face contact in the office. And that Mr Gration “appeared oblivious” to Bendigo Bank’s desire to reap the advantages of face to face interactions.

The Fair Work Commission said that the “employment relationship is a two-way street.” And that Mr Gration “does not appear to have considered any option other than working from home.”

“I gained the impression that [Mr Gration’s] primary focus was seeking to avoid a return to the workplace on the basis that it was possible to satisfactorily complete his work remotely,” the commission stated.

Ultimately, it was ruled that Bendigo Bank’s rejection of Mr Gration’s flexible work arrangement request “is soundly based on reasonable business grounds.”

Worker with insomnia contests flexible work rejection

Another flexible work arrangement dispute heard by the Fair Work Commission is Jordan Quirke v BSR Australia Ltd [2023]. This case involved a request to change work hours. Jordan Quirke started working for electrical and furniture retailer BSR Australia on a part-time basis on 23 May 2023. She was employed as a customer service coordinator. She worked four days at home and one in BSR’s office. On some days she would work 9am to 5pm and others 4pm to 10pm. 

Prior to making her flexible work arrangement request, Ms Quirke had informal discussion with her manager. She told her manager that she found it hard to get up in the morning and get to work. Also, that she felt stressed about asking her partner for a lift to work on Mondays. She explained that she wanted to change her hours and that the change was recommended by her doctor. This was because she had insomnia and anxiety.

Flexible work arrangement request is denied

In April 2023, Ms Quirke emailed her manager a mock roster that she said “would be in line with my doctor’s recommendations.” Around three weeks later, the manager replied with a roster different to that Ms Quirke had sent. Her hours had changed, but not to the extent Ms Quirke would have liked. Multiple messages over Microsoft Teams were exchanged between Ms Quirke and her manager. In August, she was informed over teams that her flexible work arrangement request had been denied. 

In September 2023, Ms Quirke appealed her flexible work arrangement request rejection via the Fair Work Commission. She argued that she had outlined that the reason for the request was that she had a disability.

Fair Work Commission decides

This case was the first that the Fair Work Commission heard following the introduction of flexible work arrangement request dispute provisions in 2023. The case was heard by the Full Bench of the Fair Work Commission. It found that Ms Quirke had not met several criteria to be entitled to a flexible work arrangement.

This included that she had failed to outline in writing the reasons for the change to her hours. While Ms Quirke had referenced her doctor’s recommendation, it never outlined that she had a disability. The Full Bench also determined that her request made over Microsoft Teams did not meet the definition of a request under the Fair Work Act 2009. Ms Quirke had also not completed 12 months of continuous service with her employer.

No evidence to support worker had disability

Ms Quirke had not met the jurisdictional requirements for making a flexible work arrangement request. However, as this was the first case the Fair Work Commission had heard following 2023 provisions, it shared its observations of whether Ms Quirke could have been regarded to have a disability.

While Ms Quirke had referenced her doctor’s recommendation, it never outlined that she had a disability. The commission acknowledged that it is possible for an anxiety condition to constitute a disability. However, it could also be considered a normal reaction to stress. It was acknowledged that Ms Quirke had never provided any evidence that she had been diagnosed with an anxiety condition.

The Fair Work Commission did not rule out the possibility that Ms Quirke’s anxiety condition was a disability. However, it said it was “difficult to conclude” if that was the case given the lack of evidence available. And that given that Ms Quirke had not satisfied jurisdictional requirements, the Full Bench would not endeavour to ascertain if her anxiety condition was a disability.

Have you been unfairly dismissed?

Contact A Whole New Approach today. For over 30 years, we’ve assisted more than 16,000 Australian workers in every state and territory to take action via the Fair Work Commission. Our services go beyond unfair dismissals, encompassing general protections, forced resignations, redundancy, workplace harassment and more.

Call us today on 1300 766 700 for a free and private consultation.