Can an employee insist on work from home arrangements? The Queensland case which solves the work from home conundrum

The lockdown situations all over Australia created a number of scenarios where employees were able to remain at home and undertake work.  Some of these arrangements led to an increase in productivity and for other organisations and industries there has been an eventual decline in productivity.

With the question around WFH coming up for Employers and how they will balance this with the needs of the organisation.  The Transport Opinion Survey, conducted by the University of Sydney Business School’s internationally respected Institute of Transport and Logistics Studies (ITLS), found that across all industries, Queensland saw the smallest change in work from home requirements to 27% more than usual.  Comparably New South Wales were at 39% and Victoria at 45%[1]

The natural erosion of workplace culture and performance management has also played a major part in many Employers implementing a hybrid model or directing staff to return to the office.  In other instances, working from home on a permanent basis amounted to an inability to perform the inherent requirements of the position.  Some employees have tested this logic and Queensland has led the way……..

The Case Of JH V State Of Queensland (Queensland Health) [2021] QIRC 422

In a case involving Queensland Health, Miss H a human resources advisor and acting workplace relations advisor at the West Moreton Hinterland Hospital and Health Service (WMH).  As part of the effect of COVID-19 a flexible arrangement was allowable as follows:

  • Work remotely 1 day per week
  • Undertake condensed hours over the other 4 days
  • At the height of the pandemic her along with her team were allowed to work remotely full time

Since March 2020 she had attended the workplace in person for 3 days.

Miss H then put in a request to work remotely from New South Wales as her was partner was starting a new job over the border.

The request was denied on the following grounds:

  • Difficulty in working as a HR manager completely remotely
  • Difficulties in undertaking in person interview panels
  • Problems providing in person assistance to stakeholders such as preparing managers for performance management
  • Issues in giving performance feedback
  • Difficulties facilitating discussions
  • Practical difficulties in flying up to Brisbane on short notice for attendance for in person sessions
  • Importantly the “inequity” it would create within the team where duties would not be fairly distributed putting pressure on other members of the team

Miss H appealed the decision in the QIRC and the Commission found the views of the Employer compelling finding that:

  • It is reasonable to expect a HR manager in this position for an organisation such as WMH would be required to undertake in person attendance
  • The very practical difficulties in the HR manager meeting reasonable expectations to undertake in person work on short notice
  • Even though work was undertaken during the pandemic remotely this would not be the norm and flexibility then for those purposes does not translate to performing the duties going forward
  • The effect on other team members was a relevant factor to consider

The 6 Considerations For Work From Home

This case clearly sets out the considerations in denying a work from request. This can be categorised around 6 main considerations:

  1. The position of the employee (and their duties) requires careful consideration
  2. There are reasonable expectations for the employee to attend in person
  3. Notwithstanding what was provided during the pandemic can this reasonably continue or does in person attendance ensure they can perform the inherent requirements of the position
  4. Have reasonable alternatives been considered?
  5. What is the effect on other team members?
  6. Do the practical difficulties in accommodating the request become a scenario where it is impractical to approve

Many clients have requested advice on this issue and we are here to help.

NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation – we are happy to help. 

Reach out via service@nb-lawyers.com.au or +61 (07) 3876 5111 to book an appointment. 

If you got value out of this article email service@nb-lawyers.com.au or click on this link to subscribe to our value added newsletter.  

Written By  

Jonathan Mamaril  

Director 

NB Lawyers – Lawyers for Employers  

jonathanm@nb-lawyers.com.au  

+61 (07) 3876 5111 


[1] https://www.sydney.edu.au/news-opinion/news/2020/09/28/australians-...

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