An employer may only refuse an employee’s request for a flexible working arrangement if it has “reasonable business grounds” to do so. The test for what constitutes reasonable business grounds is objective and will depend on the individual circumstances.
An employer may only refuse an employee’s request for a flexible working arrangement if it has “reasonable business grounds” to do so. The test for what constitutes reasonable business grounds is objective and will depend on the individual circumstances.
Section 65A(5) of the Fair Work Act 2009 (Cth) (FW Act) provides a list of non-exhaustive factors that may amount to reasonable business grounds – including if it would be too costly, impractical or inefficient for the employer to accommodate the employee’s request.
In Application by an Employee for Flexible Work Arrangements [2025] FWC 1125, the Fair Work Commission (FWC) was required to deal with a dispute about an employee’s request for a flexible working arrangement.
The employee is employed as a Provisional Psychologist on a part-time basis. Her contract of employment requires her to work three days a week performing in-person consultations at the employer’s practice in Darwin.
In or around August 2024, the employee took a period of leave due to experiencing family and domestic violence. During this period, she flew to Sydney with her child out of concern for their safety.
The employee then made a request for a flexible working arrangement to work remotely in Sydney on an ongoing basis by way of telehealth consultations.
The employee cited that the basis of her request was due to her and her child experiencing family and domestic violence and that the perpetrator had failed to comply with an apprehended domestic violence order restricting him from being within 800m of her workplace in Darwin.
The employer consulted with the employee about her request, but ultimately informed her in late September 2024 that it would be unable to accommodate her request for the following reasons:
- the employee’s role requires her to perform in-person sessions with clients in Darwin;
- a fully remote role via telehealth sessions would be considered a new role and the employer did not have any vacancies for telehealth psychologists at that time;
- due to the low demand for telehealth services and irregular nature of telehealth sessions, the employer’s existing telehealth psychologists are not permanent employees and are instead independent contractors;
- to accommodate the request, the employer would be required to employ a replacement in-person psychologist which would place an unsustainable financial burden on its business;
- reducing in-person sessions or forcing a telehealth model on existing clients who had opted for in-person services would have an unacceptable negative impact on the employer’s service delivery; and
- the employer did not have the service demand to financially support a permanent telehealth position located interstate.
The employee subsequently applied to the FWC seeking orders that would allow her to work from home entirely.
The FWC was satisfied that the employee was entitled to request a flexible work arrangement on the grounds that she was experiencing family and domestic violence – which is one of the prescribed circumstances set out under the FW Act.
The main issue of dispute before the FWC was whether the employer had reasonable business grounds for refusing the request.
The employee submitted that there was “plainly some level of demand” for telehealth sessions such that would allow her to work remotely part-time and the employer was unable to predict what future demand may look like.
However, the FWC disagreed, stating at [61]:
“It is not to the point that there is “some demand” for such services. The question is whether there is sufficient demand for that work to support the [employee] working remotely.”
The FWC ultimately accepted the employer’s evidence that there was inadequate demand for the telehealth services that the employee claimed she could provide remotely.
In particular, the FWC noted the data presented by the employer which showed an average of 1.38 telehealth sessions per week as viable clients that could be allocated to the employee based on her skill set and experience - which is significantly lower than the 18 weekly sessions she ordinarily performs.
The FWC also disagreed with the administrative work suggested by the employee as alternatives to conducting telehealth sessions, finding that such work was not revenue-generating and would fundamentally change the nature of the role the employee was employed to perform.
The FWC also accepted that the proposed arrangement would have a negligible negative impact on the employer’s financial position. The FWC acknowledged that the employer is a small business with only five clinicians and accommodating the employee’s request would require it to employ a sixth clinician and to continue paying the employee a salary with no certainty as to what revenue she would create.
In considering the above, the FWC held that despite the “disturbing” basis for the employee’s flexible work request, the employer had reasonable business grounds for refusing the request.
Accordingly, the application was dismissed.
Lessons for employers
The purpose of flexible work arrangements under the FW Act is to accommodate the circumstances of an employee if the employer is in a position to do so. Despite unfortunate circumstances like the ones presented in this decision, the situation may be that an employer has reasonable business grounds to refuse the request.
When considering flexible work requests, employers are reminded to objectively consider the circumstances of the request, the employee’s role and the business operations at that time in determining whether there are reasonable business grounds to refuse the request.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
