Health Service Refusal of WFH Arrangement Considered Reasonable

Hair v State of Queensland (Queensland Health) [2021] QIRC 422

Introduction

This case concerns an appeal of a health service’s decision to refuse a flexible working arrangement for a human resources employee who wished to work remotely from interstate. The Queensland Industrial Relations Commission (the Commission) rejected the employee’s arguments and considered that the decision to refuse the requested working arrangements was fair and reasonable.

Facts

Jennifer Hair (the Appellant) is employed as a human resources advisor and acting workplace relations advisor at West Moreton Hinterland Hospital and Health Service (the Health Service).  On 7 January 2020, the Appellant was granted a flexible working arrangement whereby she would work one day per week remotely and would work full-time hours over four days.  The Appellant worked remotely full-time from 26 March 2020 in the role of acting Workplace Relations Advisor.  By February 2021, the Appellant was working both as a Human Resources Advisor and acting Workplace Relations Advisor, in a part-time capacity in each role and continued to work entirely from home.

On 21 September 2021, the Appellant submitted a request for flexible working arrangements under which she would be permitted to work remotely full time from New South Wales (as her partner was moving there for work), in the same four day compressed week format under which she had previously been working. This request was refused by email on 11 October 2021 from Ms Bain.  The key reasons for the decision included:

  • The initial flexible arrangements had been in response to the pandemic; however, it was reasonable to expect that business would return to site.
  • While the Appellant could fulfil many of her obligations remotely, there were some elements of the role which would be difficult to undertake remotely (for example, in-person interview panels).
  • While the Appellant had suggested that she could spend one week per month in Queensland, this would not account for unpredictable matters and those arising at short notice which may require in person attendance.
  • Duties may be unevenly distributed.
  • At the time of the decision, the border restrictions between Queensland and New South Wales would also make it difficult for the Appellant to travel to Queensland where in person attendance was necessary.

The Appellant brought an appeal before the Commission and sought a decision permitting a trial of her requested flexible working arrangement for 12 months, with a review of the arrangement at 6 months.

Issues

The key issues before the Commission were:

  • whether the Appellant was entitled to an appeal; and
  • whether the decision made by the Health Service was fair and reasonable.

Decision

Entitlement to appeal

The Health Service submitted that the Commission should refuse to hear the appeal due to the Appellant’s failure to comply with the relevant employee grievances directive. It was submitted that the Commission may decide only to hear the appeal where it is satisfied that the employee has used the required procedures, including the grievance directive. The Commission considered it “curious” that the Health Service requested the appeal not be heard, given that Health Service informed the Appellant that if she was not happy with the decision, she had the option of an appeal to the Commission.

Was the decision fair and reasonable?

Under s 562B(3) of the Industrial Relations Act 2016 (QLD) (the Act), the purpose of an appeal is to determine whether the decision appealed against was fair and reasonable.  The appeal provides an opportunity for review of the decision but is not a new hearing. Under s 562C(1) of the Act, the Commission may confirm the decision, substitute another decision, or return the issue to the decision maker.

The Appellant submitted that the decision was unfair and unreasonable on the basis that Ms Bain, as the decision maker, did not:

  • consider the principles from the flexible working policy and guidelines, including by considering the application on its merits;
  • formulate reasonable grounds regarding why the arrangement would not work;
  • work with the Appellant to find a solution to meet the needs of relevant parties;
  • consider that the Appellant was able to perform her roles working remotely and that no concerns had been raised regarding her working remotely;
  • consider the impact of the decision on the Appellant’s relationship with her partner; and
  • did not consider alternative options.

The Health Service submissions included:

  • That the arrangement which led to the Appellant working remotely full-time was in response to the COVID-19 pandemic and that the Health Service was looking to find the right balance of remote and in person work.
  • Key accountabilities for human resources roles included the provision of “hands-on” support.
  • That it recognised the benefit of flexible working arrangements; however, it was difficult to see how the Appellant could be based interstate and fulfil the key accountabilities for her role. This challenge is exacerbated by COVID-19 restrictions which can be unpredictable.
  • The Appellant’s performance was not in issue, but it was necessary for her to be available to attend in person and it would not be possible to provide the optimal level of support where the Appellant is based in New South Wales. It would be impractical for the Health Service to agree to set number of times for the Appellant to travel to Queensland per month as it is not possible to predict when a human resources/employee relations response may be required.

Further submissions were made by the Appellant in response to the Health Service’s submissions and subsequently by the Health Service and the Appellant again. The Commission decided that the decision made by the Health Service to refuse the Appellant’s requested flexible working arrangement was fair and reasonable.

In reaching this decision, the Commission considered that the Health Service’s flexible working arrangement policy clearly supported flexible work options. However, the Commission highlighted clauses which provided that the request should be considered in an equitable manner, that client service should not be compromised and that the person considering the request could decline the request.

The Commission noted the Appellant’s submission that she worked under a flexible working arrangement prior to working exclusively remotely during the pandemic.  At the time of the Appellant’s application, the Health Service was in the process of transitioning away from the work arrangements which had been put in place in response to the pandemic.  The Commission considered that the submissions made it clear that there would be a shift from the COVID-19 remote working arrangements and that it was not unreasonable for the Health Service to take this into account in considering a flexible working arrangement request.  Further, at the time of the application, for the Appellant would need approval and 14 days in hotel quarantine to travel from New South Wales to Queensland. Even if the quarantine requirements were not in place, the Appellant would need some notice prior to attending the workplace in person and this was considered in the assessment of the Appellant’s application.  The Commission considered that this supported the Health Service’s assessment that the requested arrangement would not be practically or operationally viable.

The Commission considered that while the Appellant and other public servants may have fulfilled their roles under flexible working arrangements in response to COVID-19, it was not unreasonable for an employer to determine the operational requirements for a role. It was clear that in some instances it would be most appropriate for human resources support to be provided in person.

The remote working approach taken as a result of the COVID-19 pandemic may have demonstrated that human resources support can be provided remotely, however it does not follow that employers should not seek to return to some balance of the provision of face-to-face and remote provision of services.

Further, it was not unreasonable to expect there to be times when the Appellant may be needed to attend in person at short notice and that if the requested arrangement were approved, others in the team may have an additional workload.  The Commission also accepted the Health Service’s submission that it was not a requirement for it to undertake consultation with the Appellant’s team and clients.

The Commission was satisfied that:

  • the decision made by the Health Service illustrated that the relevant policy and guidelines were considered;
  • the decision provided reasonable grounds for refusal;
  • the Appellant was consulted, but the conclusion was reached that the requested arrangement was not viable;
  • the Appellant’s high standard of performance while working remotely was acknowledged by the Health Service;
  • the decision also acknowledges the personal impact it will have on the Appellant; and
  • it was reasonable to conclude that it would not be sustainable to permit a working arrangement which would require a commute from New South Wales on short notice.

Therefore, the Commission was satisfied that none of the Appellant’s grounds of appeal were established and the Commission confirmed the Health Service’s decision to refuse the flexible working request.

Compliance Impact

This decision highlights that in some circumstances, an employer may refuse a request for flexible working arrangements, even where some flexible working arrangements are already in place.  Despite the ongoing disruption caused by the pandemic to in person attendance at work, there may also be a reasonable expectation that some roles will return to performing in-person duties. This decision also highlights the importance of ensuring that your organisation has policies and procedures for requests for flexible working and that these are followed when considering any such requests.

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