In a decision that should ring alarm bells for employers, a Full Bench (the Bench) of the Fair Work Commission (FWC) recently overruled an employer’s decision to refuse a part-time flexible work request because the employer had failed to follow one of the procedural requirements outlined in the Fair Work Act 2009 (FW Act).
The Bench ordered the employee’s request be granted because of the procedural error in responding to the flexible work request, even though findings had been made at first instance (undisturbed on appeal) that there were reasonable business grounds to refuse the request. The Bench emphasised that the importance of the written response required of an employer by the FW Act “cannot be understated”.
The request
A teacher employed by Sacred Heart Primary School, Pymble requested in late 2024 to return part-time in terms 1 and 2 of 2025 as she transitioned back from parental leave to assist in accommodating parenting until childcare commitments could be finalised.
The school refused the request based on the adverse impacts on students, cost increase, adverse workload on other staff and reduced leadership at the school.
Importantly, at first instance, Commissioner Matheson found that there were reasonable grounds for the refusal and this finding was not overturned on appeal.
Process flaw fatal
The school did not follow the requirements under the FW Act when refusing the request. Firstly, the response to the request was provided after 82 days, as opposed to the required 21 days. However, this did not invalidate the refusal.
Of more importance was that the school failed to address in its written response the consequences or impact the refusal would have on the employee. By failing to address this matter in its written response, the Bench formed the view that the employer did not consider the adverse impact the decision would have on the employee, which meant that one of the pre-requisites for refusing the flexible work request had not been met.
The Bench went on to find that because one of the factors that needed to be considered by the employer had not been considered, the school could not refuse the request.
As a result, the Bench quashed the original decision (which had endorsed the school’s refusal) and substituted the outcome with it’s own order granting the employee’s request.
This single process flaw meant that the school “was not entitled to refuse the request" and “should not have done so”.
Relief granted intriguing
The type of relief granted by the Bench, namely, granting the part-time request, was somewhat intriguing given that the Bench appeared to accept that a valid finding had been made by Commissioner Matheson to the effect that there were reasonable business grounds to refuse the employee’s request.
In such circumstances, the Bench could have instead ordered the employer to reconsider the request with a correct process or issued other orders to ensure the appropriate process for considering flexible work requests were followed. This is especially the case given that the effect of the finding that the refusal was not valid meant that there was still a request that needed to be addressed (which would ordinarily be addressed by an employer).
Instead, the Bench somewhat surprisingly simply granted the employee’s request in full. This again underlines the importance the Bench placed on employers properly discharging their obligations before issuing flexible work refusals.
It also highlights that if employers get the process wrong the first time, they might not get a second chance because the FWC may simply override the employer process with their own outcome.
Important lesson for employers
The important lesson for employers is to ensure that all pre-requisites for refusing a flexible work request under s65A of the FW Act are met before any refusal is issued.
These include:
- discussing the request with the employee;
- genuinely trying to reach an agreement with the employee about making changes to working arrangements to accommodate the employee’s circumstances;
- consider the consequences of any refusal for the employee; and
- ensuring there are reasonable business grounds for the refusal.
All of these matters should then be identified in the written refusal that is provided to the employee, so as to confirm that the relevant pre-requisites have been addressed.
The decision
Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWCFB 82.
Need more help?
ABLA has prepared a Flexible Work Arrangements Toolkit for employers to ensure they respond correctly to requests, every time. Contact us at info@ablawyers.com.au for more details.
Alternatively, if you have questions related to flexible work requests please email info@ablawyers.com.au or call 1300 565 846.
