Refusing an employee’s request to return to work part-time constituted constructive dismissal, the Fair Work Commission (FWC) has found.
The FWC ruling related to a woman coming back to work after a period of unpaid parental leave. However, the ruling may also have implications for working carers returning to work after taking carer’s leave, workers with disability and workers over the age of 55.
The FWC ruling means that when these employees request varied work arrangements, employers must seriously and genuinely consider the request and any potential consequences of not granting it.
Employers must be aware of terms in their enterprise agreements that provide employees with a right to request to return to work from a period of such leave on a part-time basis, because such terms may be construed as providing employees with a presumed right to return to part-time work.
The case in question was recently considered by FWC, which held that an employer constructively dismissed an employee when it refused the employee’s request to return to part-time work following a period of unpaid parental leave.
Under the Fair Work Act, employees with children under school age, or under 18 with a disability, have the right to request flexible working arrangements, which may include working part-time. Employers can only refuse such a request on reasonable business grounds.
The decision of Commissioner Lewin in Hanina Rind v AIST  FWC 3144 indicates that, where an enterprise agreement provides a right to request to return to work on a part-time basis, it will be presumed that employees are entitled to return to work part-time unless there are reasonable grounds upon which part-time employment can be refused.
The onus appears to be on the employer to prove the reasonableness of the refusal on an objective basis, notwithstanding that this issue could generally not be dealt with under traditional dispute resolution.
Facts of Hanina Rind v AIST
Hanina Rind was employed by the Australian Institute of Superannuation Trustees (AIST) on a full-time basis as a Database/IT Systems Administrator and, after a period of unpaid parental leave following the birth of her second child, she sought to return to work on a part-time basis.
The relevant enterprise agreement provided Ms Rind with a right to request a return from parental leave on a part-time basis until her child reached school age. Ms Rind asked if she could return to work on a gradually escalating schedule that would ultimately result in her working three days a week.
The AIST refused her request on the basis that the role of Database/IT Systems Administrator is a full-time role and that reducing it to a part-time role would not work for the business. Ms Rind subsequently resigned and filed an application with the Fair Work Commission, claiming that she was constructively dismissed.
What constitutes constructive dismissal?
In determining whether an employee has been constructively dismissed, Commissioner Lewin explained that:
“The task of a court or tribunal will be to objectively assess an employer’s conduct as a whole and determine whether, judged reasonably and sensibly, relevant conduct of an employer was so harmful, adverse or unfriendly to the contract of employment and the employment relationship that the employee could not be expected to put up with it.”
Growing recognition of parental rights and related consequences
The decision in this case highlights the growing influence of parental rights in the workplace on the interpretation of applicable workplace instruments.
While the opportunity for part-time work on return from parental leave might not long ago have been considered a fortunate privilege, contemporary circumstances require a different view.
What should employers do?
As a starting point, employers should give genuine consideration to any request for flexible working arrangements made under the Fair Work Act or any applicable enterprise agreement and only refuse such a request on reasonable business grounds. This is not only prudent compliance with legal obligations but is good employment practice which will assist in attracting and retaining employees.
Accordingly, when faced with an employee requesting varied work arrangements, following a period of parental leave, employers must ensure that they seriously and genuinely consider the employee’s request and any potential consequences of granting the request on the business.
If an employer plans to reject such requests, it should only do so when there are very good grounds, taking into consideration the increasing importance placed by the Commission (and the community generally) on parental rights.
Source: This article was condensed and rewritten from a blog written by Clayton Utz lawyers Dan Trindade and Jennifer Winkworth. Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article.
Source: Working Carers Gateway