28 Oct 2005

Requests for flexible return-to-work arrangements after parental leave

by Chris Hartigan

An employer can refuse a request for more flexible working arrangements without breaching the SDA if the refusal is "reasonable". What is considered "reasonable" in a particular case will depend on the circumstances including the size of the enterprise and the availability of alternatives.

Requests for flexible work are becoming more frequent

Increasingly employers are faced with requests for more flexible working arrangements from their employees. Often these requests stem from employees returning to work after maternity leave, or seeking to vary their work hours to meet family responsibilities particularly associated with caring for young children. Frequently these employees wish to either work part-time or have greater flexibility in their working arrangements, such as working from home. Many employers now advertise their preparedness to be flexible to retain and attract skilled staff.

Is there a right to return to work after maternity leave?

The Workplace Relations Act 1996 (Cth) and equivalent State industrial legislation provide that women have the right to return to work after maternity leave and men from paternity leave to the position which they held prior to commencing leave, or to a comparable position if the original position has ceased to exist. If an employer refuses to return an employee to their former position, the employer may be liable for a breach of the relevant statute or award where applicable. The employer may also be liable under the Sex Discrimination Act 1984 (Cth) ("SDA") or equivalent State legislation, which prohibits both direct and indirect forms of sex discrimination.

Under section 7A of the SDA discrimination on the ground of family responsibilities is prohibited. "Family responsibilities", as defined in section 4A of the SDA, includes the responsibilities of the employee to care for or support a dependent child of the employee or any other immediate family member who is in need of care and support. An immediate family member is defined as a spouse, adult child, parent, grandparent, grandchild or sibling of the employee.

Is there a right to return to work from maternity leave on a part-time basis?

Recent cases under the SDA have established that an employer cannot unreasonably refuse a woman's request for flexible working arrangements upon returning from maternity leave, although there is not as yet an automatic right to return to work on a part-time basis in all circumstances.

In Escobar v Rainbow Printing Pty Ltd an employee requested the right to work part-time upon returning from maternity leave. Her employer refused and then terminated her employment. Ms Escobar brought a claim under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOC Act") claiming she was the subject of sexual discrimination contrary to the SDA. The Federal Magistrates Court held that Ms Escobar was discriminated against on the basis of her family responsibilities and that the employer had not established that there was a valid reason to refuse to offer her part-time employment. She was awarded damages of $7,325.73.

This case establishes that, even though parental leave obligations in legislation and awards only provide that a woman on maternity leave has the right to return to her previously held position, if an employee wishes to return to work on a part-time basis, to meet their obligations under the SDA, the employer must consider whether it is reasonable in the circumstances to refuse to offer part-time work.

When an employer can refuse a request for flexible working arrangements

An employer can refuse a request for more flexible working arrangements without breaching the SDA if the refusal is "reasonable". The employer may demonstrate the reasonableness of a refusal by pointing to the nature of their business and the work involved in the particular position.

In some recent cases, where an employer has claimed that a refusal was due to the "business needs" of the company, the refusal has still been held to be discriminatory.

In Mayer v ANSTO, Ms Mayer requested that her employer allow her to work part-time after she returned from maternity leave. This was refused. The employer argued that its business needs dictated that the position was required to be worked on a full-time basis due to the regular interaction with other staff and the necessity of a consistent approach in the role. In the employer's view, these factors made Ms Mayer's proposals of job-sharing or working from home impossible.

Ms Mayer then brought an application under the HREOC Act claiming damages or reinstatement for alleged unlawful discrimination on the grounds of the applicant's family responsibilities, her sex or pregnancy.

The Federal Magistrates Court found that while it was reasonable for the employer to refuse the employee's proposals, the evidence showed that suitable part-time work was available within the business. Therefore, the employer's failure to offer Ms Mayer a part-time role was unreasonable in those circumstances. Also, the employer's refusal of Ms Mayer's request had indirectly discriminated against her and actually constituted a constructive dismissal.

Consequently the court declared that Ms Mayer had been unlawfully discriminated against, contrary to the SDA and was awarded damages of $39,294.

Recent cases highlight important issues for employers:

Employer's refusal was "ill-considered and short term"

Reddy v International Cargo Express is another example where an employee proposed to return to work after maternity leave on a part-time basis, and the request was refused by the employer. Mrs Reddy, a licensed customs broker, claimed that her employer discriminated against her by requiring her to return to work full-time and offering her a position of lesser status than she held prior to her maternity leave. She brought an action under the Anti-Discrimination Act 1977.

In making its decision, the New South Wales Administrative Decisions Tribunal considered the speed with which the employer had rejected the part-time work proposal, its failure to speak to Ms Reddy about her proposal and the failure to explore other options, such as a job-sharing arrangement.

The Tribunal concluded that the employer's decision was an ill-considered, short-term decision that failed to address all the circumstances. Mrs Reddy was given no option but to resign and search for alternative, part-time employment because no effort at accommodation was made or even seriously considered.

The Tribunal said the test when making an assessment of whether a particular requirement (here the requirement to work full-time) is reasonable, is not simply to ask if a practical and feasible alternative is available. The availability and feasibility of an alternative is relevant but not conclusive.

The requirement for Mrs Reddy to work full-time appeared "appropriate and adapted". But her employer failed to give proper and full consideration to whether Mrs Reddy could perform her role on a part-time basis, either under the model she proposed or some variation of it. As a result, the requirement imposed by the employer was not reasonable in all the circumstances.

Ms Reddy was awarded damages of $16,385.

Employee unable to accommodate request because of lack of available positions under enterprise agreement

In Howe v Qantas Airways Ltd the employee, a long haul flight attendant, claimed she had been discriminated against by her employer, Qantas.

The employee was required to cease flying due to her pregnancy and therefore worked in a lower paying ground based job. On her return to work from unpaid maternity leave, she sought more flexible working hours. However, as no part-time work was available at her level, she obtained a lower position where the hours were more flexible.

The employee then brought proceedings in the Federal Magistrates Court under the SDA and the HREOC Act claiming damages for unlawful discrimination on the grounds of family responsibilities, her sex and pregnancy. She argued that she was directly discriminated against because of her pregnancy and indirectly discriminated against because of her sex by being denied part-time work. Further, she claimed that by being forced to seek a demotion after maternity leave she was constructively dismissed.

The Federal Magistrates Court held that Qantas' refusal to vary Ms Howe's position did not constitute a constructive dismissal because there was no interruption to her employment. Further, while her initial request for alternative working arrangements was refused, she was encouraged to apply again and her subsequent request for a "voluntary transfer" was met.

It was held that Qantas' refusal did not constitute indirect discrimination either, because it held open, the option of her obtaining part-time employment. The number of part-time places available were limited under the relevant EBA. It was not Qantas which imposed any condition on the number of part-time positions. Indeed, Qantas did not impose any condition of full-time work at all. Qantas was simply unable to accommodate her request for part-time employment because no positions were available at that time. Anyway, Ms Howe was invited to apply again when she returned to work.

Qantas did not refuse to renegotiate Ms Howe's conditions of employment when she sought more flexible working hours. Qantas could not immediately accommodate the request for part- time work but agreed to a request from Ms Howe that she be permitted to transfer from her position of client service manager to an ordinary flight attendant position. While she chose to characterise that transfer as a "demotion", she sought and was granted it to give her the flexibility she needed to provide care for her young second child.

The claim was rejected.

Checklist for employers when considering requests for flexible working arrangements

These cases suggest that an employer is entitled to refuse a request for part time employment or more flexible working arrangements without breaching the SDA where the refusal is reasonable. What is considered "reasonable" in a particular case will depend on the circumstances including the size of the enterprise and the availability of alternatives. But an unreasonable refusal will likely see an employer having to justify its decision in court.

Employers faced with a request to return to work under more flexible working arrangements must:

  • Objectively review the request
  • Fully consider any proposals or alternatives, such as job-sharing or working from home, which have been suggested by the employee (though to be viable these proposals must be suited to the requirements of the business and the position), and
  • If the decision to refuse the request has been made, detailed reasons for the refusal might be provided, explaining the business requirements of the employer, along with the particular requirements of the position in issue. A general reason such as the "business needs" of the company cannot accommodate part-time work is unlikely to be a sufficient defence to a subsequent claim.

 

Thanks to Merrilyn Sernack and Eliza Morgans for their help with this article.

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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 communication. Persons listed may not be admitted in all States and Territories.