In a recent Fair Work Commission decision[1], an employee of Fedex Express Australia (Fedex) lodged a flexible working request asking to work remotely four days a week. The request came following a series of similar requests made in accommodation of his family care duties and off the back of him already working remotely for much of the working week.
Like many current cases, the employee had continued working remotely from home following the lifting of COVID-19 restrictions. When directed back to the office two days a week, the employee commenced a pattern of taking leave on each of the days he was supposed to be in the office. When the requirement to work from the office increased to three days per week, the employee submitted a number of further flexible working requests, culminating in the dispute before the Commission. While some of the employee’s requests were agreed upon with the employer, his request to work from home four days a week indefinitely, was refused by Fedex. Instead, Fedex proposed alternative arrangements which in turn, were not accepted by the employee.
Notwithstanding Deputy President Lake’s observations that Fedex could have considered concerns regarding the employee’s wellbeing, and noting the full time working from home arrangements would be “isolating, particularly in potentially stressful home environment”, the Commission found that Fedex did not have reasonable business grounds to refuse the employee’s request, as it could not demonstrate a significant loss in efficiency or productivity, or a significant negative impact on customer service.
While Fedex was found to have genuinely tried to reach an agreement, and although it led evidence of the benefits of working in the office, the Commission ruled that Fedex was not able to prove the detriment to the business in refusing the flexible working arrangement and that accommodating such a request was in the employer’s interest for employee retention and job security.
This decision struck me as placing an incredible high bar on employers embroiled in disputes regarding flexible working arrangements.
Increasingly, we are seeing employees making flexible working requests to work almost exclusively from home. In a recent matter of mine, an employee in question had moved during the COVID-19 pandemic and was located more than an hour from her employer’s premises. She argued that because she had worked 100% remotely during the pandemic, there was no detriment to her continuing to do so, indefinitely. She cited carer responsibilities and a disability arising from the ‘stress’ of being directed back to the office two days a week.
While remote work has enormous benefits for all, the trend in employees resisting the call to return to the office, even for two or three days a week, may soon be up.
In our last edition of Kingston Reidable, Special Counsel Shannon Walker offered her insights on the Commission’s flexible workplace arrangement regime (you can read her previous article here). Notably, in the case of Shane Gration v Bendigo Bank [2] the FWC refused a working from home request in which the employee sought to work 100% of his 5 days working week from home.
In that case, the Commission upheld the reasonableness of the employer’s refusal, noting the importance of face-to-face interactions and attendance.
Echoing the Commission’s observations in the Gration case, one of the enormous downsides of employees working much of their week remotely is the decline in the cultural capacity of an organisation.
Another, the drain of on-the-job training opportunities; that intrinsic osmosis of being ‘in the thick’ of things and leaning into corridor conversations with more experienced colleagues. We’re also seeing a decline in resilience or what is often referred to as psychosocial or ‘brain’ capital—the cognitive, emotional, and social resources that employees bring to their roles and interactions with others. Fostering resilience, particularly in our younger workers, cannot be overstated.
As employers, we must recognise that the jobs of the future will increasingly demand these brain skills. Whether it’s for roles that require high levels of cognitive function or for positions where automation has shifted the nature of tasks, the value of an individual’s psychosocial capital is paramount. This is especially true as we witness the integration of artificial intelligence and robotics into our workplaces, which will inevitably reshape the skills required for success.
However, psychosocial capital is not a static asset. It can be nurtured and strengthened, or it can deteriorate in the face of unhealthy work environments. It is our responsibility, as employers, to ensure that our workplaces are conducive to the development of this capital, offering stimulation and positive dynamics that empower our employees. Conversely, we must be vigilant against the erosion of this capital through negative interactions, such as bullying or discriminatory behaviours, or in some cases, high levels of remote work.
The recent Fedex decision serves as a poignant reminder of the changing dynamics of work, whilst placing a significant burden on employers to justify the refusal of flexible working arrangements which see employees working almost exclusively from home. This decision, together with the push of employers to bring employees back to the office, is likely to encourage a surge in such requests, challenging employers to provide robust evidence of any likely detriment to the business, and also highlights the ongoing struggle between the desire of many employees to work remotely and the efforts of employers to bring employees back to the office.
While each request needs be assessed on its face, fortunately, the science of neuroscience supports the notion that in-person interaction is crucial for building psychosocial capital and offers important evidence that can be leveraged to demonstrate that while remote work offers certain benefits, the human element of face-to-face collaboration is essential for a resilient and adaptable workforce.
[1] Ridings v Fedex Express Australia Pty Ltd [2024] FWC 1845
[2] [2024] FWC 717
On 20 August 2024, the Sydney office of Kingston Reid is proud to be hosting our Wise and Shine Breakfast Seminar, where we bring together a dynamic, multi-disciplinary panel to discuss the benefits of neuroscience in fostering stronger and more resilient employees, and how organisations might harness the science as part of their approach to managing psychosocial risks in the workplace more broadly.
Places are limited, please email [email protected] if you would like to attend this in person breakfast event.