Reasonable to deny employee’s flexibility request

Reasonable to deny employee’s flexibility request

One of the clear challenges employers increasingly face following the pandemic is a demand from employees for more flexible arrangements, including the ability to work from home, setting their own working hours or limiting their availability.

A recent NSW case considered this issue involving a dispute between a registered nurse engaged on a permanent part-time basis, who sought to be rostered only on shifts across Friday, Saturday, Sunday and Monday, and her employer. She had enjoyed this arrangement for many years prior to a change in the rostering process in October 2020.

However, the employer’s preference was that she be available to be rostered across seven days per week, the same as all other permanent staff. They did allow her some flexibility in selecting start and finish times to assist with her non-work commitments.

Prior to October 2020, each member of the team pencilled in their own shift rosters as to when they would be available, but this process was ceased to enable greater management control of the roster and better service to their external clients.

The employee’s request was based on her desire to care for her 14-year-old asthmatic son and assist in his schooling and extracurricular activities. She claimed that she had no other family support to assist her other than her husband.

Her employer claimed they were unable to accommodate her desired limitations on working days for several reasons, including rostering fairness, skill mix on shifts throughout the week, existing staff vacancies, difficulties with filling the roster on some of the days the employee does not wish to work, skill retention for the employee, and clinical supervision of the employee.

In the hearing before Commissioner Chris Muir, the employee’s representatives submitted that neither the employee’s letter of offer nor the prevailing award mandated that the employee had to be available for work seven days per week.

Nevertheless, Commissioner Muir found that the employer’s rejection of the proposed rostering arrangements was fair and reasonable. He noted that the majority of the employee’s team also had family responsibilities that they could manage across a rotating roster.

As he noted, “I accept the respondent’s submissions that granting the rostering arrangements sought by the applicant would result in the respondent building it’s rostering around a single employee”.

The dispute was settled with the existing arrangements being maintained.

New South Wales Nurses and Midwives’ Association v Secretary, Ministry of Health in respect of Northern Sydney Local Health District [2022] NSWIRComm 1001 (25 January 2022)

For questions about flexible working arrangements, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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