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Flynn v State of Queensland (Queensland Health)[2021] QIRC 390

Flynn v State of Queensland (Queensland Health)[2021] QIRC 390

 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Flynn v State of Queensland (Queensland Health) [2021] QIRC 390

PARTIES: 

Flynn, Shelley

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/305

PROCEEDING:

Public Service Appeal – fair treatment decision

DELIVERED ON:

12 November 2021

HEARD AT:

On the papers

MEMBER:

Pidgeon IC

ORDERS:

  1. The decision to partially approve Ms Flynn's flexible work arrangement is set aside and copy of this decision is provided to the decision maker;
  1. That it is noted that a review of the flexible work arrangement put in place for the team is being reviewed in early November; and
  1. That if Ms Flynn is still seeking a flexible work arrangement different to the one currently approved, she submit a new request including all relevant information she wishes the decision maker to consider.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a fair treatment decision – where the appellant applied for a flexible work arrangement – where the application was partially approved – whether the respondent had considered personal circumstances

LEGISLATION:

Industrial Relations Act 2016, s 562B, s 562C

Public Service Act 2008, s 194

CASES:

Gilmour v Waddell & Ors [2019] QSC 170

Reasons for Decision

  1. [1]
    Ms Shelley Flynn is employed by the State of Queensland (Queensland Health) (the Respondent) as an Administration Officer. Ms Flynn is appealing a decision dated 1 July 2021 to partially approve a request for flexible work arrangements (FWA)
  1. [2]
    On 20 May 2021, Ms Flynn submitted a flexible working arrangements – Application and agreement form.[1] In that application, Ms Flynn made request for:

Working from home/alternative location

I would like to continue the current flexible work roster for the Sunshine Coast Purchasing Team which was put in place due to the Covid 19 Pandemic.

  1. [3]
    The details of the request were set out as follows:

Working from home has allowed me to manage my work and life balance and spend more time with my family due to not having to commute every day and has allowed me to be more productive with work requirements and has improved my mental health.  I am more productive being of a clearer mind which helps me to better problem solve and create less errors.  I have young children and my daughter has also had a history of respiratory conditions so social distancing is very important for my family.  The current work office at NGH is too small to accommodate 4 staff members under the current guidelines. I use my own computer/equipment and can transfer calls to my mobile phone.

  1. [4]
    Ms Flynn's request was for the arrangement to be in place from 24 May 2021 and be ongoing with a review after 12 months.
  1. [5]
    In the section of the form headed 'Potential Issues', Ms Flynn says:

I will require a remote access key.  May require a phone, however am happy to use my personal phone and claim calls on my tax return.

My position does not require face to face communication as majority of my work communication is via email and I would attend the work office for any required meetings if they fall on a day where I am rostered at home.

I will take responsibility to ensure my work practices are not affected with consultation with my Supervisor Belinda Gloede.

  1. [6]
    Ms Flynn's request was partially approved by Lynette Jones, Director Supply Operations Southern. The reason for decision (dated 2 July 2021) states:

Since the Department's recall of staff to the office we are assessing all flexible working arrangement requests by applying a considered, fair and equitable approach with each application – finding a balance between the Department's directive, business needs and staff's preferences.  All of our purchasing staff work in a team environment and there are many gains to being present in the office.  When part of the team is absent from the workplace, we lose the benefit of spontaneous group discussion in regard to problem solving, training, information transfer, potential productivity and general social interactions. For staff present on a day to day basis I see the amount of interactions that occur.

We have approved staff who have applied for flexible work arrangements in all other purchasing hubs to work from home one day per week. Your situation is a little different due to your current accommodation status.  We are still actively looking for extended accommodation for the team so I will consider  continuance of an approved working from home arrangement for the Sunshine Coast Team with the following conditions:

  • The provided roster is revised to have 3 in the office each working day including a Weds. This may mean the days each person is listed to work from home or in the office may need to change to accommodate the additional day on a rotational basis and will require some flexibility around this, the days may need to change each week.
  • Office desk phones are transferred through to a home phone contact (either land line or mobile) on the WFH days;
  • Work hours cover the span of established office hours 7:00 – 4:30 (with the continuance of ADO accrual time incorporated)

 (arrangements to be reviewed monthly)

  1. [7]
    On Friday 16 July 2021, Ms Flynn wrote to David Sinclair, Executive Director Covid-19 Supply Chain Surety Division appealing the decision.
  1. [8]
    On Friday 6 August 2021, Mr Sinclair wrote to Ms Flynn by email.  Mr Sinclair acknowledged the details of Ms Flynn's request as outlined above.  The decision went on to say:

I understand that discussions have taken place with respect to proposing an equitable roster for you and your team to attend the workplace and that this has resulted in three different roster patterns being proposed:

  1. The original roster from 2020 - which represents you working from home a total of two weeks in every three and from the workplace one week in every three;
  2. The Current Roster – which represents you working from home 14 days in a four-week period, and the remaining six days in the workplace; and
  3. The three staff in the office roster which represents you working from home two days each week, and the remaining three days in the workplace.

I understand that roster patterns 2 and 3 above were presented and agreed to by you and your team following discussions with Ms Jones and your supervisors. I do note that roster three was only agreed to 'under duress' and further that Ms Jones had requested that this roster be adjusted to include a third team member present at the workplace each Wednesday.

I acknowledge that despite there being discussions amongst the team and with Ms Jones and your supervisors around your (and others) flexible working arrangement requests, a formal decision was not provided to you within the required 21-day response period and I pass on my apologies for this oversight.

HR Policy C5 (the Policy) Flexible Working Arrangements Provides that flexible working options are to be considered in an equitable manner for the whole work unit and are not to compromise client service. The Policy also details that flexible working arrangements should be reviewed on a regular basis e.g. every three months to ensure ongoing suitability for the employee, the work team and the organisation.

I have now had the opportunity to review your request for a flexible working arrangement, specifically that you work from home in the same manner in which you did during the COVID pandemic (roster pattern 1 above). In reviewing the request and reaching my findings I have considered the personal and operational perspectives.

I wish to advise that I have determined to support the implementation of roster 3, which represents you working from home two days in each week and the remaining three days from the workplace. I have requested this be implemented initially for a three month/trial commencing immediately and to be reviewed in early November 2021.

In reaching this decision I have considered the details you have included as the basis for your request as well as the operational requirements. I consider that this roster pattern represents a balance of providing flexibility for you to work from home which enables you to focus on your mental health and wellbeing including your family commitments, but also is considerate of the operational and team requirements. I also wish to advise that based on the concerns raised around the size of the work area an assessment has been undertaken to ensure its safety for staff.

Your role is a client/customer interfacing role which requires regular interactions with other colleagues, teams, and clients both internal and external. Whilst this can be managed via Microsoft Teams and other mediums, I do agree with Ms Jones that there are considerable benefits in attending the workplace including increased opportunities to interact and improve through team dynamics. Working from the workplace environment enables you to hear other colleagues and your supervisors interactions and to engage in sporadic conversation of mutual learning and benefit.

At the conclusion of the initial three-month trial period I have asked that Ms Jones conduct a review of the arrangement, as encouraged by the Policy, to determine the effectiveness from a personal and operational perspective. Following the completion of this review, a determination will be made around the continuation or revision of the flexible working arrangement. [emphasis added]      

Is the Appellant entitled to appeal?

  1. [9]
    Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made.  Section 194(1)(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
  1. [10]
    The appeal notice was filed with the Industrial Registry on 26 August 2021 within 21 days of Mr Sinclair's decision being received on 6 August 2021. I am satisfied that the Appellant may appeal the decision.

Appeal Principles

  1. [11]
    Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
  1. [12]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
  1. [13]
    A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker.

 

  1. [14]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

  1. (b)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [15]
    With respect to decisions about requests for flexible working arrangements, s 28(2) of the IR Act provides that "The employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds".
  1. [16]
    The principles to consider in determining whether a decision is 'unreasonable' were set out by Ryan J in Gilmour v Waddell & Ors [2019] QSC 170:

The focus of a review on the reasonableness, or unreasonableness of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statue conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[2]

Grounds of Appeal

  1. [17]
    Ms Flynn says that the decision is not fair, reasonable or consistent with Queensland Health's FWA Policy (the policy) and supporting guideline which provide Departmental guidance to line managers who are the responsible delegate for reviewing FWA applications.
  1. [18]
    Ms Flynn points to various statements and principles from the policy and guideline and says that a key point in the Guideline is that, 'It is the position of Queensland Health that employees have access to flexible working arrangements where this is operationally feasible. As a result, where possible decision makers (delegates) should be looking for reasons to say 'yes', rather than say 'no' without grounds'.
  1. [19]
    Ms Flynn says that the decision maker has not taken genuine and reasonable consideration of her personal circumstances outlined above at [3].
  1. [20]
    Ms Flynn believes that the assertion around the benefits of "spontaneous group discussion in regard to problem solving, training, information transfer, potential productivity and general social interactions" are unfounded and do not constitute a genuine business reason to refuse to consider her application for a FWA.
  1. [21]
    Ms Flynn says that given her work unit had been successfully working a roster that placed two staff members in the office (50 percent office occupancy) five days per week for 15 months during the COVID shutdown (from March 2020), that experience would have provided substantive evidence to review the operation of the work unit with a work roster that she is now requesting as a FWA.
  1. [22]
    With regard to Mr Sinclair's statement in his decision that Ms Flynn's role is a client/customer interfacing role which requires regular interactions with other colleagues, teams and clients both internal and external, Ms Flynn says:
  • It is apparent Mr Sinclair does not understand the nature of her role;
  • face to face interaction with external clients is not part of her role;
  • Ms Flynn is not a clinician and does not meet with suppliers to discuss suitability of products;
  • generally, interactions with internal clients are done via phone calls and emails;
  • the main work task Ms Flynn does is raising and managing purchase orders on a computer;
  • if issues arise, Ms Flynn uses phone or email to resolve issues; and
  • Ms Flynn has good rapport with many clients whom she has never met face to face.
  1. [23]
    Ms Flynn says that is apparent given the response to her colleagues' FWA applications in her work unit, that a blanket approach has been taken to decision making and this is directly at odds with the approach outlined in the policy and relevant guidelines.
  1. [24]
    Ms Flynn is concerned about the size of the office space she works in and cites noise of construction work.
  1. [25]
    On 18 May 2021, Chief Human Resources Officer, Ms Theresa Hodges sent out a Queensland Health wide email stating that staff were to make return to the workplace the 'default arrangement' unless a FWA was in place.
  1. [26]
    Ms Flynn says that this instruction seems to have compromised management's obligation to genuinely and reasonably consider an individual staff member's personal circumstances in determining an application for FWA.
  1. [27]
    Ms Flynn says that while documents state that there is no 'one size fits all' approach to considering applications, that is clearly what has happened in the consideration of the applications of Ms Flynn and her colleagues in the Nambour Supply Surety Branch.
  1. [28]
    Ms Flynn cites the recent COVID outbreak in July 2021 which necessitated the reduction in staffing numbers in the Nambour office.  Ms Flynn says that it seems prudent to have an FWA in place that would help cushion the blow of future snap lockdowns.

Respondent submissions

  1. [29]
    Following COVID work arrangements in place during the past 18 months, on 18 May 2021, the Chief Human Resources Officer advised employees that it was time to return to the workplace unless a flexible work agreement is in place.  Employees were advised that they could make FWA requests and that teams needed to find the right balance for the organisation, the team and the individual.
  1. [30]
    Ms Flynn and two of her work colleagues submitted FWA requests on 21 May 2021.
  1. [31]
    The response to Ms Flynn's request is outlined above. Ms Flynn requested an internal review of that request and the response from Mr Sinclair is also outlined above.

Compliance with Flexible working arrangement requirements

  1. [32]
    The Respondent submits that the decision has been fair and reasonable in the circumstances and has been made in accordance with the relevant legislative provisions, the policy and the guidelines.
  1. [33]
    Ms Jones and Mr Sinclair accepted Ms Flynn's grounds for her FWA request as acceptable to warrant the partial approval of an agreement.
  1. [34]
    The decision making involved communicating with the team and the team leader that efforts should be made to explore how the three FWA requests may be operationalised, including Ms Flynn's request.
  1. [35]
    Mr Carrick, Manager Health Safety and Wellbeing, Department of Health, undertook an assessment regarding the size of the office.  His report indicated that all four Sunshine Coast Purchasing team employees could safely work in the office and met the social distancing requirement of being 1.5 metres apart.[3]
  1. [36]
    The Respondent says that the decision-makers took into consideration the balance required between individual flexibility and operational and team requirements and advises that there were three FWA applications from within the same work area received in short succession.
  1. [37]
    The Respondent submits that the decision making in relation to the Appellant's FWA request was fair and reasonable and involved input from the team to allow for work arrangements to be designed that would allow a partial approval of the FWA for Ms Flynn.   This approach is consistent with the policy, guidelines and IR Act requirements.
  1. [38]
    The Respondent says that the decision-maker undertook a review of each request on a case-by-case basis and considered factors including: the type of work performed; the impact of the FWA on other employees; the impact of the FWA on client service requirements; and the ability to maintain adequate supervision.

Reasons

  1. [39]
    Ms Flynn has provided her perspective and belief of the benefits for her of working remotely.  She has not provided evidence to support her claims of the benefits or how the COVID work arrangement provides the most significant benefit to the individual, team and organisation.
  1. [40]
    The Respondent has accepted Ms Flynn's perspective on the benefits of remote working without requiring evidence as a large body of scientific research supports a balance between work and life.
  1. [41]
    The Respondent says that there are also considerable benefits in attending the workplace based on the same body of scientific research supporting a balance between work and life.

Blanket Approach

  1. [42]
    Due to the requirements of taking a team approach and ensuring all FWA requests are dealt with as fair and equitable as possible; the result may be that the same conditions are granted in each FWA.
  1. [43]
    The operational and team requirements and the general benefits of balancing work and life are the same regardless of which team member requests an FWA. This means that, in part, the reasons provided to support an FWA request partially are more likely to appear similar to another request, especially when the requested outcome is the same.
  1. [44]
    While it may appear that a blanket decision has been made, it is due to the framework in which FWAs must be considered, not because an individual's needs have been ignored.

Summary

  1. [45]
    The Respondent has approved an agreement that partially approved the Appellant's FWA request.  The Appellant does not have to work from the workplace 100 percent of the time, they can work 60 percent in the workplace and 40 percent remotely.
  1. [46]
    The decision making has provided the right balance of the individual, team and organisational needs and is fair, reasonable and meets the legislative and policy provisions.

Ms Flynn's submissions in reply

  1. [47]
    Ms Flynn states that she has been directed to work in the office for four days per week and from home for one day per week rather than the three days/two days arrangement advised by the Respondent.
  1. [48]
    Ms Flynn, her immediate team and supervisor were never contacted by a decision maker to discuss her FWA and it appears a desktop review was undertaken without further enquiries to herself, her team or the clients she services.
  1. [49]
    Ms Flynn was not given an opportunity to provide further details on her request to work from home including her need to care for her elderly mother who is suffering from medically diagnosed chronic anxiety, lives on her own and lives only minutes from Ms Flynn.  Ms Flynn says that this means when working from home, she can attend to her mother quickly in an emergency.  When working in the Nambour office, it can take upwards of an hour to travel home. Ms Flynn raises concerns about her mother phoning her at work and this raising Ms Flynn's anxiety as it means that she finds it difficult to talk to her mum about very private matters in the office environment.
  1. [50]
    If unsuccessful in her FWA appeal and forced to return to the Nambour office, Ms Flynn would prefer to work part-time but is concerned about the negative financial impact on her family, including expensive child care when she is in the office.
  1. [51]
    Mr Carrick did not carry out a site visit but rather undertook his assessment based on photos of the office. 
  1. [52]
    Ms Flynn says that Mr Sinclair did not provide any information about how fairness and equity were applied to her FWA and have not explained what organisational requirements were taken into consideration and how Ms Flynn has or has not met these requirements while working from home.
  1. [53]
    Ms Flynn says that the decision makers have not considered: the type of work she does; the impact on other employee's FWA as the team have all submitted to continue a mutually agreed roster; the impact on client services (and attaches examples of client feedback she has sought); and the supervision provided to her by her supervisor who she says is supportive and has adapted to supervising the team remotely.
  1. [54]
    Ms Flynn says that her colleagues in the Nambour office have received responses to their FWA that are almost word for word the same. Her purchasing officer colleagues in Brisbane also received almost identical responses. Ms Flynn questions how it is that multiple FWA applications have all resulted in the same outcome.

Respondent submissions in reply

  1. [55]
    The Respondent says that Ms Flynn continues to work three days in the office and two days remotely each week.
  1. [56]
    Ms Flynn has raised new reasons for requiring a FWA in her appeal submissions.  The policy requires the reason for the FWA to be stated in the application. The decision makers could not have considered these new reasons as they were unknown at the time the application was made and considered. The Respondent is open to consider any new reasons Ms Flynn has for a FWA if she outlines her new reasons in an application.
  1. [57]
    While the Respondent notes that Ms Flynn has sought client feedback and attached it to her submissions, it is worth noting that clients do not have the delegation to determine where Ms Flynn will perform her work. The feedback provides valuable insight but it is right and proper that the delegation to determine FWA requests sits with Ms Flynn's management.
  1. [58]
    The Respondent has met the requirements outlined in the Policy and whilst it may appear that a blanket decision has been made, it is due to the framework in which FWAs must be considered, not because individual's needs have not been given consideration.
  1. [59]
    Throughout the COVID-19 pandemic, the workforce has rapidly adapted to working from home where possible. Remote working has been ad hoc and focused on ensuring tactical work is performed whilst ensuring employee and community safety.
  1. [60]
    The Respondent submits that having three days in the office and two days working from home is a reasonable balance in the context of the new normal working arrangements which the organisation can integrate remote working into its policy, strategy, scope, resourcing and direction to accommodate a higher level of hybrid workplace models.
  1. [61]
    The default work location for Ms Flynn has always been in the workplace.  Ms Flynn is now requesting to work in the office only 20% of the time, working one day in the office per week or three days in the office over three weeks.
  1. [62]
    The Respondent says that it has been reasonable in considering Ms Flynn's request and an alternate proposal by only requiring her presence in the office for 60% of the time, working three days per week in the office.
  1. [63]
    The current arrangement will be reviewed in early November to determine the effectiveness from a personal and operational perspective.

Consideration

Appeal based on grounds for the decision and/or the process followed

  1. [64]
    As noted at [16] above, a decision about the unreasonableness of a decision is to be considered by reference to the subject matter, scope and purpose of the statue conferring the power.
  1. [65]
    One of the purposes of the IR Act is to 'promote diversity and inclusion in the workforce, including by providing a right for employees to request flexible working arrangements to help balance their work and family responsibilities.[4] Section 27 of the IR Act enables a request for flexible working arrangements. Section 28 sets out what the employer may decide to do in responding to the request.
  1. [66]
    The purpose of the policy is 'to outline the industrial provisions for flexible working arrangements'.  Clause 2 of the policy states the 'flexible working options are to be considered in an equitable manner for the whole work unit. Client service and patient care is not to be compromised as a result of flexible working arrangements'.
  1. [67]
    Cl 3 of the Policy states that employees have a right to appeal based on grounds for the decision and/or the process followed.
  1. [68]
    Ms Flynn appears to take issue with a) the grounds for decision – being that they do not deal with her individual circumstances (both personal and operational) with specificity; and b) the process followed – being that she does not think that there has been enough of the consultation and discussion recommended by the guideline.

COVID-19 work arrangements and return to workplace

  1. [69]
    It is established in the submissions and is not controversial that for a period of time, Ms Flynn (and her team) worked remotely as part of the COVID-19 response to enable employees and the community to remain safe.  From 18 May 2021, a return to the workplace was announced.  That communication from Theresa Hodges made it clear that while workplace presence would be the default arrangement, employees would still be able to make application for a FWA.
  1. [70]
    This appears to have prompted Ms Flynn (and two other members of her team) to make application to continue the 'current flexible work roster' put in place due to the COVID-19 pandemic.  It appears that the work roster that Ms Flynn was seeking to continue was the one put in place in response to COVID, rather than being a pre-existing FWA arising from a request made and considered under the policy or guideline.

Ms Flynn's request for a FWA

  1. [71]
    Ms Flynn made her request and provided her reasons for requesting a FWA on 20 May 2021.  I accept the Respondent's submission that new reasons or further information provided in her submissions for this appeal should not be considered by me in determining whether the decision appealed against was fair and reasonable.  I do not agree with Ms Flynn that it was for the Respondent to undertake further inquiries with her as to whether she had other reasons for requesting the FWA.  It is clearly the employee's responsibility to put forward all relevant information when making their request.
  1. [72]
    I note the submissions made by Ms Flynn regarding the size of the office space and I am satisfied that the Respondent has addressed issues relating to the office space. That Mr Carrick used photographs and other information provided to him rather than conducting a physical visit does not undermine his assessment of the workspace.

Grounds for granting the request in part and subject to conditions – personal and operational considerations

  1. [73]
    The decision Ms Flynn received from Mr Sinclair references her personal or individual needs as listed in her FWA request form, however it does not address them in any detail.
  1. [74]
    The decision of Mr Sinclair appeared to provide operational reasons at an 'organisation level' rather than specifically focused on the work of Ms Flynn and the team she works in.  The statements made by Mr Sinclair generally describe the nature of the type of work Ms Flynn and her colleagues undertake and the interactions they have with clients or colleagues. The statements appear to be opinions expressed about the benefits of being physically present in the workplace without any concrete connection to the role of Ms Flynn and her team.
  1. [75]
    The earlier decision of Ms Jones, upheld by Mr Sinclair, says that a decision had been made regarding the FWA requests of staff in 'all other purchasing hubs' to work from home one day per week.  In the case of Ms Flynn's team, due to an issue with office space to enable distancing, it was determined that the working from home arrangement would involve putting a roster in place to have three people in the office on each working day. The Jones decision refers to 'all of our purchasing staff' and it is unclear what consideration has been given to the particulars of the FWA applications of Ms Flynn and her colleagues.
  1. [76]
    I note Ms Flynn's submission that the work unit had been successfully delivering the service it provides under the COVID arrangements and that there had been no issues raised about their capacity to do the work remotely.  With respect, the success or otherwise of the team's work during the COVID-19 period is not a reason to simply continue the COVID safe working arrangements that were in place for the purpose of health and safety during a pandemic.  Nor do I accept that the potential for future restrictions to be put in place due to an outbreak is a reason to maintain remote working conditions for the workforce indefinitely.  An FWA has a different purpose to a policy response regarding a public health emergency.
  1. [77]
    I do not accept that the 18 May communication from Ms Hodges about transitioning back to the workplace as the default arrangement has compromised decision making with regard to determining applications for FWA.  The employer made a decision to commence a return to the workplace for those employees who had been working remotely during the pandemic and ensured that a) employees were aware of the capacity to apply for a FWA and b) that those employees who already had a FWA in place were aware that it was able to continue.
  1. [78]
    Ms Flynn points out that cl 5.3 of the guideline says that it is the position of Queensland Health that employees have access to flexible working arrangements where this is operationally feasible.  This does not appear to be in dispute as the FWA has been approved, albeit partially.  The Respondent openly acknowledges the benefits of balance between work and life and the policy and guidelines are evidence of this.
  1. [79]
    Ms Flynn is a member of a small team of three who work with a supervisor and Ms Flynn and both of her colleagues had all applied for a FWA. 
  1. [80]
    There was a reasonable need for the decision-maker to consider implementing a roster which would enable all team members to access a FWA in order to balance the needs of the organisation, the team and the individual, as outlined in the communication from Ms Hodges on 18 May 2021.  To that extent, I accept that there may have been some repetition in the language used in the decisions each member of the team received.
  1. [81]
    However, I do not think that the partial approval decision provided to Ms Flynn addressed her personal circumstances and the operational matters specifically relevant to her role.
  1. [82]
    With the exception of the text summarising or reproducing the reasons given by Ms Flynn, the decision was very general in nature.  It did not explain how or why the partial approval and roster to be implemented would meet the operational or business needs relied upon more satisfactorily than the arrangement being requested by Ms Flynn (and the team). 

The process followed in considering the request

  1. [83]
    It may be that there was a high volume of requests for FWAs (and requests for an internal review of FWA decisions) in the aftermath of the announcement that the workforce would be returning to workplace presence as the default, however it was still reasonable for applications to be considered as per the policy and guideline.
  1. [84]
    There is a strong focus in the guideline and attachment 1 of the policy for discussion to occur directly between the supervisor and the employee about the FWA request and planning collaboratively to create an arrangement that meets individual, team and organisational needs. 
  1. [85]
    Ms Flynn says that she was never contacted by a decision maker to discuss her FWA and that it appears that a 'desktop review' was undertaken.  I note that the Respondent says that the decision involved communicating with the team and the team leader about making efforts to explore how the three requests may be operationalised.  It is clear that a team approach was going to be required when all three members of a three member team were seeking a FWA.  However, while I accept that it did not need to be face-to-face, I think that it was necessary for the decision-maker to consult with the individuals involved to assess their personal requests before determining the outcome.
  1. [86]
    The email provided to the decision maker by Ms Gloede on Wednesday 30 June 2021 made specific reference to the fact that the roster being provided had been agreed to 'under duress' and that the team had found it difficult to 'devise an equitable solution'.
  1. [87]
    The reply to the team from Ms Jones acknowledges the roster that was provided but makes no reference to the concerns raised by Ms Gloede.  It includes a paragraph explaining the approach taken for staff who have applied for a FWA in 'all other purchasing hubs'.  The only reference to the specific needs of the team is the reference to the 'current accommodation status'. It also appears to me that the views expressed by the employer regarding the nature of the day-to-day work remains at odds with the experience and/or perceptions of Ms Flynn.
  1. [88]
    Mr Sinclair's decision acknowledges that the roster was only agreed to 'under duress', however, the decision does not address this apparent issue or take an opportunity to inquire as to what this meant and how it was addressed.
  1. [89]
    The submissions before me do not demonstrate that, given the circumstances where the majority of the team was seeking a FWA and appeared to enjoy a level of support for this from their supervisor, an appropriate level of local, direct consultation and discussion took place.  I am not convinced that the delegate can demonstrate that 'they worked with the employee and the larger team to find solutions that best meet work, team and personal needs'.[5]
  1. [90]
    Further to that, attachment 1 to the policy states at cl 2.1 that 'multiple requests are best managed by taking a proactive approach where all team members are invited to consider some form of flexible work that supports their personal and team performance or wellbeing.'  There is no evidence before me of a 'proactive approach' being undertaken that involved all members of the team.
  1. [91]
    A 'proactive' approach involving all team members would not have necessarily led to an outcome that made all team members happy, but it would have involved a detailed discussion of why the roster arrangement eventually chosen for implementation by Ms Jones and supported by Mr Sinclair, would better meet the business needs of the employer than the roster preferred by the employees.

Conclusion

  1. [92]
    The decision did not result from a process that I would consider reflective of the policy and guideline. I do not think the grounds for partial approval of the request appropriately address and reflect the personal and operational circumstances of Ms Flynn. For these reasons I do not think that the decision of Mr Sinclair was fair and reasonable.
  1. [93]
    However, this does not lead me to a conclusion that the decision should be set aside and replaced with a decision that Ms Flynn's request be granted in full.
  1. [94]
    Instead, noting that there is a review of the FWA arrangements at Nambour to be undertaken in early November (and it is currently early November), it seems to me that Ms Flynn should submit a fresh request for a FWA (if she maintains a desire for a FWA and has not done so already).  A fresh request would enable Ms Flynn to include the further information she sought to raise in submissions in this appeal. 
  1. [95]
    The Respondent will then have the opportunity to consider Ms Flynn's request, alongside other information it has gathered over the preceding three months that the current arrangement has been in place and in consultation with the team.
  1. [96]
    If Ms Flynn is unhappy with the result of that FWA request, it is open to her to request a review of that decision and follow the process that has led her to lodge this appeal.
  1. [97]
    Given that it is clear that the arrangements in place affect not just Ms Flynn but a number of her colleagues, it is appropriate that the current arrangements remain in place while Ms Flynn's fresh FWA request is considered.

Order

  1. The decision to partially approve Ms Flynn's flexible work arrangement is set aside and copy of this decision is provided to the decision maker;
  1. That it is noted that a review of the flexible work arrangement put in place for the team is being reviewed in early November; and
  1. That if Ms Flynn is still seeking a flexible work arrangement different to the one currently approved, she submit a new request including all relevant information she wishes the decision maker to consider.

Footnotes

[1] Attached to Ms Flynn's Appeal notice 26 August 2021.

[2] Gilmour v Waddell & Ors [2019] QSC 170, [207]-[209].

[3] Email from Mr Terry Carrick to Ms Teena Davis 'RE: Sunshine Coast (Nambour) Office Space Concerns'.

[4] IR Act s 4(k).

[5] The Policy, cl 2.1.

Close

Editorial Notes

  • Published Case Name:

    Flynn v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Flynn v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 390

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    12 Nov 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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