Unfair Dismissal and Flexible Working Arrangements

Employer fined $20,882

Ms Khutson, a full-time employee of Pay Per Click has been with her company since November 2014 and was recently informed that her hours of work will change from 9am to 5pm with a 30-minute lunch break to 9am-5.30pm with a 60-minute lunch break.

Initially, Ms Khutson agreed to the change however she advised her employer that this will affect personal commitments on Mondays and Wednesdays thus requesting to leave at 5:15pm and shortening her lunch break by 15 minutes.

The employer refused and Ms Khutson was advised that if she did not sign her revised employment contract, her employment may be terminated. Ms Khutson refused and as a result, her employment was terminated by email.

When the Fair Work Commission (FWC) heard this case, they found that the employer was guilty of contravening the NES Standards. Specifically, by not providing Ms Khutson her right to request Flexible Working Arrangements. As a result, Ms Khutson was awarded 17 weeks of salary worth $22, 882 and the employer was fined $20, 882.

Advice for Employers

Flexible Working Arrangements

Are Part of the NES Standards

Under the Fair Work Act, Employees are entitled to request a flexible work arrangement and it is unlawful to refuse any request unless reasonable grounds have been determined.

Upon a request for a flexible working arrangement, we recommend businesses consider the following:

• Nature of the work performed by the employee
• The employee’s parental or carer responsibilities.
• The timing of the request
• How much the arrangement will cost.
• What effect the arrangement will have on other employees and your business.
• The positives and negatives to your business and the employee
• Whether other legal obligations will be breached by modifying the work arrangement, e.g. health and safety laws.

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