Managing people

Requests for work flexibility went too far

Employers must seriously consider requests for flexible arrangements, but when is a request too much to accommodate? Read about an employer that was justified in rejecting a request and dismissing the employee. 

12 October 2021

The Fair Work Commission has upheld the dismissal of an employee who requested flexible work arrangements to enable her to care for a grandson with special needs. 

It found that the employer had gone to great lengths to try to accommodate the employee, but the parties simply could not reach an arrangement that worked for the business.

Facts of case

The woman was a receptionist at a construction company. She needed to take her grandson to attend various appointments. However, this impacted her working hours, which averaged less than 30 per week during the six months prior to her dismissal, and even those were often made up outside normal opening hours. This led the employer to claim that her regular unavailability had a significant negative impact on its business that was no longer sustainable.

Assistance provided to her included: time off work, altered work hours, allowing children in the office, and diverting calls to her mobile phone when she was at home caring for her grandson. Eventually, the employer said that she would have to spend all her working hours in the office, or else it would have to replace her. The employee agreed to try to do so, but her hours in the office began declining again after two weeks. 

When she suggested changing and reducing her work hours to fit the appointments around them, the employer refused. She then sought to take up to six months' unpaid leave to put permanent arrangements in place, but the employer again refused. At the same time, she said she would be on annual leave for a week due to “stress and anxiety”. She produced a medical certificate as evidence, but the employer said it could not meet this request due to a lack of notice. It then dismissed her, claiming that the reason was her capacity, as she could not work full-time, nor part-time in a way that worked for the business. There was evidence that the business was under financial pressure and that her absences had contributed to that.

The FWC found that the employee had tried very hard to make things work, sometimes attending the office at 4am to perform work. However, a lot of receptionist work required her to be in the office during normal business opening hours. The employer had been exceptionally “flexible and considerate”, but the situation eventually became untenable. 


For the above reasons, the dismissal was valid and fair and was implemented in compliance with the Small Business Fair Dismissal Code. The employer warned her that it would have to discuss her employment, told her that her job was at risk, gave her time to consider whether she could commit to full-time work, then dismissed her when the parties could not agree on suitable arrangements.

What this means for employers

Although employers have to consider seriously employee requests for flexible work arrangements, they are entitled to reject them on legitimate business grounds. In this case, the inability to work the required hours at the required times was a legitimate reason to reject the request.

Read the judgment: Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994 (28 September 2021)

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