Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2023
  4. Dudley v State of Queensland (Office of Industrial Relations) - [2023] QIRC 212

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Dudley v State of Queensland (Office of Industrial Relations)[2023] QIRC 212

Dudley v State of Queensland (Office of Industrial Relations)[2023] QIRC 212

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dudley v State of Queensland (Office of Industrial Relations) [2023] QIRC 212

PARTIES:

Dudley, Elizabeth

(Appellant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO:

PSA/2023/63

PROCEEDING:

Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:

26 July 2023

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a fair treatment decision – where the appellant requested an extension to a flexible working arrangement – where the respondent was unable to support the extension – where the respondent offered an alternative flexible working arrangement to the appellant – where appellant considers respondent's decision to refuse her request was unfair and unreasonable – decision fair and reasonable

LEGISLATION AND OTHER

INSTRUMENTS:

Individual employee grievances (Directive 11/20)

Industrial Relations Act 2016 (Qld) ss 27, 28, 562B

Public Sector Act 2022 (Qld) ss 110, 134

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Goodall v State of Queensland [2018] QSC 319

Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480

Hume v State of Queensland (Queensland Health) [2021] QIRC 272

Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Petrie v State of Queensland (Queensland Mental Health Commission) [2022] QIRC 343

Stievano v State of Queensland (Queensland Health) [2022] QIRC 404

Reasons for Decision

Introduction and background

  1. [1]
    Ms Elizabeth Dudley ('Ms Dudley') is substantively employed by the State of Queensland (Office of Industrial Relations) ('the Respondent') as a permanent fulltime AO3, Tribunal Officer at the Medical Assessment Tribunal ('MAT') within the Workers' Compensation Regulatory Services.
  1. [2]
    Since taking a period of maternity leave in 2018, Ms Dudley has worked under a series of agreed arrangements that have allowed her to reduce her days of work each week and to work from home. While the maternity leave was the precipitator of these arrangements, the global pandemic that commenced around March 2020 and the subsequent response to it by the Respondent has been a significant factor necessitating extended work from home arrangements for Ms Dudley between 2020 and early 2022.  
  1. [3]
    From March 2020 to February 2022, Ms Dudley worked under 'vulnerable employee' arrangements which included adjustments allowing her to work from home. In keeping with the gradual relaxation of restrictions as the pandemic began to wind down, Ms Dudley was asked to transition back to work in the office from May 2022.
  1. [4]
    Ms Dudley entered a temporary Flexible Work Agreement ('FWA') until approximately August 2022 wherein she worked two days per week.
  1. [5]
    Thereafter, attempts were made from August 2022 to reach agreement with Ms Dudley about expanding her working days in the office. A number of meetings were held with Ms Dudley and despite the Respondent's desire to have Ms Dudley expand her days in the office at that time, the Respondent ultimately agreed to a further temporary FWA to allow for a further opportunity to assess the organisational impact of Ms Dudley's absence from the office.
  1. [6]
    The Respondent accommodated Ms Dudley's temporary FWA through until February 2023. In that period of time there were four meetings held with Ms Dudley: on 23 November 2022, on 16 and 23 February 2023, and 2 March 2023. Extensive discussion was undertaken to find a compromise, but Ms Dudley declined all proposals. On 2 March 2023 the discussions (finally) reached an end with Ms Dudley rejecting the proposal that she work three days per week including one from home.
  1. [7]
    On 8 March 2023, pursuant to a request for written reasons from Ms Dudley, she was informed that the Respondent was unable to support a further extension of her two day per week FWA on a permanent or temporary basis ('the primary decision'). The Respondent at that time indicated it could only accommodate Ms Dudley on an FWA where she worked three days per week (with one of those days working from home).
  1. [8]
    The written reasons provided to Ms Dudley advised that the Respondent could not support a further extension of her FWA because inter alia:
  • the Respondent had difficulty in recruiting suitably qualified staff who may be interested in a part-time or job share arrangement;
  • there was an increase in referrals to the MAT;
  • of the inherent requirements of Ms Dudley's role;
  • the ongoing assistance of other staff required to fulfil Ms Dudley's duties in her absence impacts upon their ability to fulfil their own duties; and
  • of the workload and/or health and wellbeing of Ms Dudley's colleagues.
  1. [9]
    Contained within the written reasons was also a proposed alternative FWA which included a three day per week, permanent part-time arrangement with approval to work from home one day per week (with the work from home day to be approved on a week-to-week basis).
  1. [10]
    On 13 March 2023, Ms Dudley submitted a further request for an FWA to work two full days in the office and two half days from home per week of her choosing.
  1. [11]
    On 15 March 2023, Ms Dudley sought an internal review of the 8 March 2023 decision by way of an individual employee grievance under the Individual employee grievances (Directive 11/20) ('the Directive'). The internal review was sought on the basis that Ms Dudley considered the 8 March 2023 decision was unfair and unreasonable.
  1. [12]
    On 29 March 2023, Mr Jason Korenromp, A/Executive Director, Business and Corporate Services, confirmed the primary decision to refuse Ms Dudley's request for a two day per week FWA on a permanent or temporary basis ('the decision under review'). Ms Dudley now appeals this decision.

Statutory framework for public sector appeals

  1. [13]
    Section 134 of the Public Sector Act 2022 (Qld) ('PS Act') provides for appeals to be heard and decided by the Commission under Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
  1. [14]
    Section 562B of the IR Act provides that the Commission must decide the appeal by reviewing the decision appealed against. It is not a rehearing of the appeal in the form of a hearing de novo.[1] The term 'review', however, is not defined by the IR Act. Instead, it will take its meaning from the context in which it appears.[2]
  1. [15]
    In the circumstances, I must decide whether Mr Korenromp's internal review decision to refuse Ms Dudley's request for a two day per week FWA on a permanent or temporary basis was fair and reasonable.[3]

Relevant legislation

  1. [16]
    Section 27 of the IR Act relevantly provides:

27Request for flexible working arrangements

  1. (1)
    An employee may ask the employee's employer for a change in the way the employee works, including –
  1. (a)
    the employee's ordinary hours of work; and
  1. (b)
    the place where the employee works; and
  1. (c)
    a change to the way the employee works, for example, the use of different equipment as a result of a disability illness or injury. 
  1. (2)
    The request must –
  1. (a)
    be in writing; and
  1. (b)
    state the change in the way the employee works in sufficient detail to allow the employer to make a decision about the request; and
  1. (c)
    state the reasons for the change.

(Emphasis added)

  1. [17]
    Section 28 of the IR Act contemplates the employer's decision about an employee's request under s 27. It provides:

28Decision about request for flexible working arrangements 

  1. (1)
    The employer may decide to –
  1. (a)
    grant the request; or
  1. (b)
    grant the request in part or subject to conditions; or
  1. (c)
    refuse the request.
  1. (2)
    The employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds.
  1. (3)
    The employer must give the employee written notice about its decision within 21 days after receiving the request.
  1. (4)
    If the employer decides to grant the request in part or subject to conditions or to refuse the request, the written notice about the decision must state –
  1. (a)
    the written reasons for the decision, outlining the reasonable grounds for granting the request in part or subject to conditions or for the refusal; and
  1. (b)
    that the commission has jurisdiction to hear and decide a dispute over the request under chapter 6.

(Emphasis added)

  1. [18]
    The Respondent also has a Flexible Work Policy ('the policy'). The policy relevantly provides:

Policy Statement

OIR supports and is committed to providing fair and effective working arrangements where possible, to enable both employees and the business unit to effectively manage individual employees' work, lifestyle choices and family commitment, while meeting business outcomes.

…

OIR prescribes arrangements which allow employees to meet work, life and family goals while allowing the organisation to better manage its employees and meet its business outcomes by acknowledging that flexible work options reduce absenteeism, turnover, knowledge and skills loss.

…

Key Principles

The key principles for consideration of a flexible work arrangement include:

  • All employees are able to request flexibility in their role;
  • All forms of flexible working will be genuinely considered by the manager and employee;
  • Flexible work arrangements must fairly balance an employee’s needs with the operational requirements of OIR;
  • Employees are all different – the meaning of work-life balance varies throughout an individual's life;
  • Individuals must take responsibility for their own work-life balance and be considerate of the team's needs;
  • All applications will be considered taking into account the following (but not limited to):
    • The needs of the work area
    • The impact on other members of staff
    • The best option is identified to meet everyone's needs.

…

(Emphasis added)

Submissions of the parties

  1. [19]
    Each party filed submissions in respect of the Appeal in accordance with directions issued by the Commission. In deciding the Appeal, I have given careful consideration to the each of the parties' submissions and any supplementary material provided.

Respondent's submissions

  1. [20]
    The Respondent filed written submissions in respect of the Appeal on 11 May 2023.
  1. [21]
    The Respondent submits that the decision under review was fair and reasonable having regard to ss 27 and 28 of the IR Act, as well as the policy.
  1. [22]
    In reaching the decision under review, the Respondent submits that Mr Korenromp gave careful consideration to Ms Dudley's personal circumstances and parental responsibilities, but ultimately determined that they were outweighed by the genuine operational requirements of the Respondent.
  1. [23]
    The Respondent submits that, in accordance with s 28(2) of the IR Act, Mr Korenromp proposed that Ms Dudley apply for a three day per week FWA on a permanent part-time basis. In doing so, the Respondent contends that it endeavoured to facilitate Ms Dudley's request for an FWA while taking into account its genuine operational requirements and the requirements of Ms Dudley's position.
  1. [24]
    The Respondent notes that at a meeting on 23 November 2022, Ms Dudley (in support of her request) cited the burden incurred by travelling from her home in Coomera on the Gold Coast to her workplace in the Brisbane CBD. The Respondent refers to a decision of the Commission as currently constituted in Hardy v State of Queensland (Department of Environment and Science)[4] ('Hardy') where it was held that the burden of an Appellant's commute does not create a reciprocal obligation on a department to accommodate an Appellant's request for an FWA.
  1. [25]
    The Respondent submits that, given Ms Dudley's role is a frontline role with key responsibilities requiring her to be physically present in the workplace, her absence from the workplace means these responsibilities would fall to other staff. It is submitted that it was fair and reasonable for Mr Korenromp to consider the impact on other employees and the genuine operational requirements of the Respondent in making the decision under review.
  1. [26]
    The Respondent contends that it is unable to operationally support the FWA proposed by Ms Dudley because an employee's work from home days must be flexible in order to accommodate the Respondent's case load in any given week. With reference to the decision of Power IC in Petrie v State of Queensland (Queensland Mental Health Commission),[5] ('Petrie') the Respondent submits that Ms Dudley is not entitled to 'more' flexibility than her work colleagues because of her particular circumstances.
  1. [27]
    While acknowledging that the Respondent was able to provide Ms Dudley with an FWA for the periods between March 2020 and February 2022, it is submitted that these arrangements were temporary and in line with medical advice provided by Ms Dudley's treating specialist. During that period, the Respondent submits that the need for vulnerable employee arrangements to be made with respect to Ms Dudley outweighed the Respondent's genuine operational requirements.
  1. [28]
    The Respondent submits that it took reasonable steps to accommodate Ms Dudley's request for an FWA, in that it sought candidates who may be interested in a part-time arrangement to accommodate Ms Dudley's proposed FWA. However, no suitable candidates were able to be identified.
  1. [29]
    The Respondent closes its submissions by rejecting Ms Dudley's submission in the Appeal that Mr Korenromp failed to consider the trial period between 23 November 2022 and 10 March 2023 in making the decision under review. It was submitted by Ms Dudley in the Appeal that the trial demonstrated the Respondent's genuine operational requirements could support her proposed FWA. Instead, the Respondent submits that on Ms Dudley's non-working days, other staff were required to complete her duties which had the potential of impacting upon other staff members' abilities to complete their own duties.

Ms Dudley's submissions

  1. [30]
    Ms Dudley submits that it was unfair and unreasonable for the Respondent to not meet their obligations under the Directive. More specifically, Ms Dudley considers the Respondent has not complied with the policy and the Flexible Work Request Guideline ('the guideline').
  1. [31]
    Ms Dudley highlights that the policy specifies that supervisors are responsible for:
  1. (a)
    eliminating conditions which may discriminate against workers with family responsibilities; and
  1. (b)
    planning for flexible work arrangements in branch and budget plants to best suit organisational and employee needs.
  1. [32]
    Ms Dudley also notes that the guideline dictates:
  1. (a)
    managers and staff are committed to creating a work environment that supports flexibility, balances operational requirements and the employee's interests; and
  1. (b)
    managers will start from a position of being open minded when engaging with employees about their flexible work options.
  1. [33]
    Ms Dudley contends that it is disingenuous for the Respondent to submit that it has been unable to effectively manage its staffing resources to accommodate the proposed FWA in circumstances where Ms Dudley has, in one way or another, not been occupying her role on a full-time basis for five and a half years.
  1. [34]
    Ms Dudley cites the decision of Stievano v State of Queensland (Queensland Health),[6] where McLennan IC observes the rule of statutory interpretation whereby beneficial legislation ought to be given a fair, large and liberal interpretation. Ms Dudley submits that s 110 of the Public Sector Act 2022 (Qld) and the Directive are both remedial in nature, and ought to be given a fair, large and liberal interpretation.
  1. [35]
    Ms Dudley submits that the Respondent's reliance on Hardy is disingenuous in circumstances where she contends the Respondent has conflated her “personal choice” as contemplated by Hardy with her parental responsibilities. Ms Dudley further submits that she cannot “opt out” of these responsibilities, and the policy and the guideline address scenarios whereby employees have parental responsibilities.
  1. [36]
    Ms Dudley notes that the proposed FWA included two days per week where she would be working in the office. It is submitted by Ms Dudley that if an employee is unable to work in the office two days per week, it follows that it would not be possible for an employee to work in the office three days per week, as another employee would have to cover the remaining two days.
  1. [37]
    Ms Dudley also notes that the Respondent indicated it would be possible to facilitate a five-day fortnight in the future. Ms Dudley submits that it is therefore operationally possible for her to work in the office two days per week. Ms Dudley further submits that the Respondent's willingness to offer an FWA where (for at least one week) she works in the office on two days distinguishes her matter from Petrie.
  1. [38]
    Ms Dudley submits that the Respondent has not indicated why its genuine operational requirements allow for her to work from home for one full day but not two half-days. Ms Dudley opines that there is no functional difference between the two alternatives.
  1. [39]
    Referring to the Respondent's submission that Ms Dudley's colleagues were required to complete her duties during her non-working days, Ms Dudley submits that she has never been the subject of formal or informal performance management due to her failure to complete her duties. Ms Dudley further submits that it is commonplace for colleagues to cover each other's duties if they are on leave or secondment, etc.
  1. [40]
    Ms Dudley disputes the accuracy of the Respondent's submission that it is actively advertising to seek candidates interested in a part-time arrangement to accommodate the proposed FWA and further notes that there are discrepancies between her role and a role she has identified on SmartJobs (which purports to be the part-time arrangement role).[7]
  1. [41]
    Ms Dudley refers to the decision of Hume v State of Queensland (Queensland Health)[8] where McLennan IC said:
  1. [36]
    In its submissions, the Respondent contends the purpose of the expectation was to allow the gradual return of employees and balance the priority of health and safety with "the importance of returning to normal business operations". Flexible working arrangements and the supporting Policy and Guideline suggest that the concept of "normal" is evolving. If business operations can occur efficiently while an employee is working remotely, "returning" is not necessarily as important. The purpose behind the expectation supports Mr Hume's contention that a blanket approach has been taken in firstly setting that expectation and secondly, relying primarily on that expectation when making the decision.
  1. [42]
    Ms Dudley submits that the Respondent has failed to demonstrate that its “business operations” cannot occur efficiently if she were to work from half for two half days.

Respondent's submissions in reply

  1. [43]
    The Respondent filed submissions in reply to Ms Dudley's submissions on 22 June 2023. In summary, the Respondent submits:
  1. (a)
    Ms Dudley's previous FWA arrangements contemplated Ms Dudley's personal circumstances and the Respondent's genuine operational requirements at the relevant time they were granted. The Respondent is not able to support the proposed FWA given its current operational requirements;
  1. (b)
    It was fair and reasonable for Mr Korenromp to conclude that Ms Dudley's personal circumstances did not outweigh the Respondent's genuine operational requirements.
  1. (c)
    The Respondent's genuine operation requirements cannot support the proposed FWA, but it can reasonably accommodate Ms Dudley working three days per week.
  1. (d)
    The proposed FWA cannot be accommodated as it involves fixed work from home days, contrary to the Respondent's policy.
  1. (e)
    Ms Dudley has never been the subject of performance management, but during the trial period for the two day per week arrangement, she was unable to fulfill some of her duties. Ms Dudley's colleagues were therefore required to complete aspects of her role.
  1. (f)
    While it is commonplace for staff to cover each other's duties, the proposed FWA would require Ms Dudley's colleagues to cover aspects of her frontline role in addition to their own roles and ad hoc requests from other colleagues.
  1. (g)
    The position Ms Dudley located on SmartJobs[9] was not relevant to the Appeal and the Respondent maintains that it took reasonable steps to accommodate the proposed FWA by advertising part-time opportunities.
  1. (h)
    The Respondent cannot accommodate Ms Dudley working two half-days as tribunal hearings are booked across two sessions in the morning and afternoon and staff are required to prepare for, and support both tribunal sessions.

Consideration

FWAs and the IR Act

  1. [44]
    For the reasons that follow, it is necessary to firstly address the nature of FWAs generally.
  1. [45]
    There is a right of employees contained in s 27 of the IR Act to ask for an FWA. There is no right (in the IR Act or elsewhere) to be given an FWA. That legal reality must be borne in mind as the starting point for any submission made by an employee dissatisfied with an employer's decision to refuse their specific FWA request.
  1. [46]
    While the IR Act and the policy (and trends in employment law generally) demonstrate that FWAs are an increasingly popular and accessible feature in employment relationships, they remain a matter for mutual agreement between an employer and employee. But importantly, provided the grounds of refusal are reasonable (and in writing), the discretion to grant an FWA (or not) remains with the employer.[10] 

The policy

  1. [47]
    In this matter, beyond the statutory requirements contained in the IR Act, the Respondent employer has developed a dedicated policy further addressing FWAs. The intent of the policy is described under the heading 'Policy Statement'. It provides inter alia that the Respondent aims to ensure all employees are aware of flexible work options in a setting of 'equitable management of these options across the department'.
  1. [48]
    Under the heading 'Key principles', the policy provides that the Respondent has an obligation that requires that they 'genuinely consider' all forms of flexible working.
  1. [49]
    What is meant by the term to 'genuinely consider' an FWA proposal is not further prescribed in the policy. The plain meaning of that language would suggest that it will primarily require consideration of the unique circumstances of the individual making the request. Further, 'genuine' consideration would include the Respondent commencing its consideration with the objective of reaching mutual agreement on an FWA.
  1. [50]
    But further, the obligation for genuine consideration needs to be undertaken in conjunction with other obligations and considerations listed in the 'key principles' and the broader policy. Another key principle contained in the policy is that FWAs must fairly balance an employee's needs with the operational requirements of the Respondent.
  1. [51]
    The reference in the policy statement to equitable management 'across the department' and to the Respondent's 'business outcomes' plainly contemplates that a proposed FWA will also need to be considered in the context of e.g. its impact on other staff and also the Respondent's broader operational considerations.
  1. [52]
    In essence, the policy requires a reasonable balancing of the interests of each party to the employment relationship in the context of broader operational considerations. The policy does not impose an obligation on the Respondent to make any accommodation where, after appropriate consideration of these matters, it has determined it cannot. 
  1. [53]
    Further, the stated intent of FWAs according to the policy is to allow employees 'to meet work, life and family goals' while allowing the Respondent to 'meet its business outcomes'. While the language of the policy and the IR Act do not prescribe any boundaries as to the types of matters that might be more (or less) compelling reasons to grant an FWA, it would seem from the language in the policy that the intended use of FWAs is to assist employees (where operationally practicable) to achieve their optimum 'work/life balance'. Some of the most obvious 'work/life' balance considerations might include e.g. reducing the number of lengthy commutes an employee might have to make or allowing an employee to work from home to optimise management of parent or caregiving responsibilities. 
  1. [54]
    But the fact that an employee is e.g.  a parent or caregiver, or that they reside at a location requiring a significant commute will not, of itself, immediately qualify the employee for FWA approval or make a refusal to grant an FWA unreasonable. Operational requirements relevant to the role of the employee may make such accommodations impractical.[11] Further, the policy expressly encourages employees to 'take ownership of their work and family issues' i.e. not to expect that family responsibilities will necessarily compel the granting of an FWA requested.
  1. [55]
    Conversely, employees seeking e.g. extended working from home arrangements where their 'life goals' include e.g. engaging in other employment or commercial activities online could anticipate a greater degree of scrutiny of their request for an FWA and a higher prospect of refusal from their employer. While such matters may not be a barrier to the granting of a request, it must be remembered that an FWA invariably will involve a variation of the previously agreed terms of employment, and any such variation requested by an employee ultimately requires the consent of the employer.
  1. [56]
    The fundamental obligation of any employee is to provide the service they agreed to provide. Any requested relaxation of that obligation would unsurprisingly be less likely to be granted where the basis for the request is founded in e.g. an employee's desire to divert their exertions to another business or enterprise.[12]
  1. [57]
    While nothing can be ruled in or out with respect to FWA requests, and while each individual request must be considered in its own unique setting, it is likely that as the experience of FWAs evolves further, more defined boundaries around will emerge.

Ms Dudley's appeal

  1. [58]
    Part 7 of Ms Dudley's Appeal Notice filed on 6 April 2023 captures the essence of her appeal. In simple terms, she is not satisfied with the efforts of the Respondent to accommodate her request. Ms Dudley expresses a rather controversial view that the Respondent's decision in refusing her request is, she says, evidence of a 'failing' on their part to proactively manage their workforce.
  1. [59]
    Ms Dudley then expands on this theme in her written submissions, making more statements that subtly (and not so subtly) deride the decision makers as 'disingenuous' or applying 'flawed logic' and asserting they are 'confusing' genuine operational considerations with their 'inability to effectively advertise and recruit'. The robust language used by Ms Dudley is an interesting choice given what she is trying to achieve.
  2. [60]
    It must be remembered in this matter that the primary decision maker did not refuse an FWA. On the contrary, following a lengthy trial of the two days per week arrangement proposed by Ms Dudley and three subsequent consultations with Ms Dudley, the primary decision maker sought to compromise and proposed a permanent three day per week FWA, with one of those three days working from home.
  1. [61]
    The only point of difference between the parties with respect to the final FWA proposed by Ms Dudley (on 13 March 2023) and the FWA offered to her is that Ms Dudley seeks that the third day working from home be split into two half days working from home.
  1. [62]
    In those circumstances Ms Dudley's openly derisive assertion that the Respondent is 'confusing' operational considerations with its inability to manage its workforce is an impertinent 'slap in the face' to an employer who has, in fact, gone above and beyond to accommodate her and to consider her circumstances. When one considers the offer made by the Respondent, and (more importantly) that the Respondent has no obligation to grant any form of FWA to Ms Dudley, it becomes apparent that the misplaced antagonistic tones contained in Ms Dudley's submissions reveal that the only party confused in this matter is Ms Dudley.
  1. [63]
    Having regard to the numerous efforts applied by the Respondent to accommodate Ms Dudley's request, it is objectively obvious that the Respondent has been exceedingly accommodating of Ms Dudley, not just in her most recent request for a FWA, but throughout her entire history of FWAs.
  1. [64]
    As noted above, as a consequence of Ms Dudley's maternity leave arrangements and the subsequent response to the health crisis caused by the pandemic, Ms Dudley has been largely absent from the workplace for approximately five years. Plainly, the working arrangements necessary to manage the public health crisis experienced after March 2020 have left Ms Dudley with the impression that her role could be effectively performed in the longer term from home or over a reduced number of days, or both. 
  1. [65]
    But the working arrangements implemented to address the unique circumstances of the pandemic were a drastic (but necessary) alteration to the role she was employed to perform. Those arrangements were uniquely tailored to manage the risk of COVD-19 transmission and to protect Ms Dudley as a vulnerable employee. They could never form a template for her role in the longer term without mutual agreement of her employer. Ultimately, with the passing of the health crisis, operational requirements must again take precedence.
  1. [66]
    In respect of the decision under review, Ms Dudley was entirely within her rights to request an FWA that addressed her unique needs. Upon making her request, the Respondent's obligations were limited to:
  • not unreasonably refusing the request;
  • putting their reasons in writing; and (in accordance with the policy)
  • giving the request genuine consideration.
  1. [67]
    There is no basis upon which Ms Dudley could assert that the Respondent failed to genuinely consider her request. All of the evidence points quite plainly to the contrary.[13] The discussion about increasing her to three days per week (with one day working from home) began in August 2022. The trial period of Ms Dudley's two day week proposal ran from August 2022 until February 2023. There were then three meetings from February 2023 where options were discussed.
  1. [68]
    The fact that the parties did not reach agreement does not in any way displace the obvious genuineness of the Respondent's consideration of Ms Dudley's personal circumstances and her proposal. And as the correspondence attached to Ms Dudley's own Appeal Notice reveals, all of Ms Dudley's circumstances were thoroughly considered. But other matters (and people) required consideration as well.
  1. [69]
    In fact, having regard to their efforts, the Respondent has invested too much time and effort into trying to accommodate Ms Dudley. I consider that even half of the effort displayed by the Respondent would have constituted genuine consideration in this matter.
  1. [70]
    With respect to the reasonableness of the refusal, it must be again remembered that Ms Dudley's final proposal was largely accepted. The only refusal by the Respondent is that they declined to allow Ms Dudley to work two half days from home (as opposed to their proposal of one day from home).
  1. [71]
    The decision under review was the last of a number of detailed explanations offered to Ms Dudley as to why her proposal for two days per week and her proposal for two half days working from home were refused. Preceding the decision under review is the primary decision of 8 March 2023. Further, there is a detailed email dated 16 March 2023 that was sent to Ms Dudley's union representative, and a detailed letter sent to Ms Dudley on 4 August 2022. Each of these steps through numerous operational concerns about Ms Dudley working only two days per week.
  1. [72]
    Each of the written communications with Ms Dudley, from the decision under review back to the letter of 4 August 2022, explain ad nauseum the operational considerations and restrictions affecting the Respondent.[14]Indeed, the extent to which the Respondent has (repeatedly) sought to inform Ms Dudley of operational concerns is bordering on excessive. I would hasten to add here that the statutory obligation to provide written reasons at s 28(3) of the IR Act is plainly met. 
  1. [73]
    It appears the Respondent went to this excess because they thought their repeated detailed explanations would eventually get through to Ms Dudley and that she, being a reasonable person, would understand and accept that there were e.g. difficulties with recruiting properly qualified staff or that (more significantly) her proposal was going to impact existing staff.
  1. [74]
    Unfortunately for the Respondent, it appears Ms Dudley was not prepared to accept any of these explanations no matter how well they were explained or how many times they were proffered. But nor did Ms Dudley ever validly contradict what was being asserted by the Respondent. The highest it gets from Ms Dudley is her derisory assertion about her manager's 'inability to effectively advertise and recruit'.
  1. [75]
    Beyond making this allegation Ms Dudley, with no apparent insight or expertise in human resources management, offers no cogent evidence to support her churlish assertion.
  1. [76]
    I do not intend in these reasons to restate (yet again) to Ms Dudley the operational restrictions relied on by the Respondent to reasonably refuse her proposal. In all likelihood she will continue to refuse to accept they are reasonable regardless of how many times they are explained to her. Suffice to say that the Respondent has the task of ensuring it has the appropriate staffing levels to meet its operational demands. This task requires the management of the working patterns of all of its employees (including other FWAs) across five days of the week. This challenge occurs in the broader context of  the critically important task served by the Respondent in its management of an aspect of the workers compensation scheme, and the general recruitment difficulties which are a well known phenomena in Australia presently.
  1. [77]
    If any criticism can be levelled at the Respondent at all in this matter it is that the decision under review is too voluminous and too detailed, such that an objective reader is compelled to search with some effort to identify the reasons with precision. But I would hasten to add that this lack of concise language does not render the decision under review unfair or unreasonable.
  1. [78]
    In all of the circumstances, I am satisfied that the internal review decision adequately reviewed the primary decision to decline to grant Ms Dudley the FWA to her specifications. The primary decision was not attended by any error, oversight, or unfairness, and it is therefore unsurprising that the internal review decision confirmed the primary decision. It follows that I consider the decision under review to be fair and reasonable.

Conclusion

  1. [79]
    There has been an inordinate amount of time and energy expended by the Respondent in this matter trying to accommodate Ms Dudley's FWA request. As I have observed above, the obligations of the Respondent with respect to FWAs are quite limited and do not extend to requiring them to perpetuate discussion after discussion, email after email, or decision after decision in a never ending attempt to reach a mutually satisfactory outcome. Provided their grounds are reasonable, the Respondent is entirely at liberty to refuse an FWA request, wholly or partly.
  1. [80]
    Further, it is perplexing that notwithstanding the extensive and sincere efforts applied by the Respondent to accommodate Ms Dudley, she continues to feel sufficiently entitled in her position to sling insults at her managers in her formal submissions to the Commission. FWAs are an emerging trend in some workplaces and there is some enthusiastic speculation about them being the 'future' of employment in some sections of the community. But there is still a lot that is unknown about their long term feasibility and their impact on both workplaces and workers. At present FWAs are still very far from having the status of being an inalienable employee right.
  1. [81]
    Having regard to the approach adopted by both parties over the course of the negotiation of Ms Dudley's FWA, it would appear that they have both misunderstood the extent of their rights (in Ms Dudley's case) and obligations (in the Respondent's case).
  1. [82]
    Ms Dudley is employed to perform an AO3 role on a full-time basis. Prior to 2018, Ms Dudley performed her contract in accordance with this agreement. Following a lengthy interruption to this agreement (most of which was necessary to respond to the risks associated with the pandemic) the Respondent now seeks to utilise the labour that Ms Dudley agreed to provide albeit subject to their obligations under the IR Act and the policy to consider an FWA. 
  1. [83]
    The Respondent has complied with its obligations in every way. The FWA on offer to Ms Dudley is entirely reasonable both broadly and having regard to her circumstances. Further, the refusal to grant an FWA in the terms insisted upon by Ms Dudley is neither unfair nor unreasonable given the reasons repeatedly stated by the Respondent.

Order

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1]Goodall v State of Queensland [2018] QSC 319, 5.

[2]Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[3]Industrial Relations Act 2016 (Qld) s 562B(3); Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61. 

[4][2022] QIRC 480.

[5][2022] QIRC 343, [21].

[6][2022] QIRC 404, [70].

[7]Attachment G to the Appellant’s submissions filed 8 June 2023.

[8][2021] QIRC 272.

[9]Attachment G to the Appellant’s submissions filed 8 June 2023.

[10]Industrial Relations Act 2016 (Qld) ss 28(2),(4).

[11]See for example Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480.

[12]Employees having second jobs is nothing new and prima facie is not matter over which an employer can exercise control. But a very important exception giving rise to an employer's right to object is where the second employment gives rise to a conflict of interest or in some other way adversely impacts on the employer's enterprise.

[13]See the chain of correspondence from August 2022 to March 2023 attached to Ms Dudley's Appeal Notice filed 6 April 2023.

[14]See generally the attachments to Ms Dudley's Appeal Notice filed 6 April 2023.

Close

Editorial Notes

  • Published Case Name:

    Dudley v State of Queensland (Office of Industrial Relations)

  • Shortened Case Name:

    Dudley v State of Queensland (Office of Industrial Relations)

  • MNC:

    [2023] QIRC 212

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    26 Jul 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480
3 citations
Jump To
Cite 1 - [2022] QIRC 480
Cite 2 - [2022] QIRC 480
Cite 3 - [2022] QIRC 480
Hume v State of Queensland (Queensland Health) [2021] QIRC 272
2 citations
Jump To
Cite 1 - [2021] QIRC 272
Cite 2 - [2021] QIRC 272
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Petrie v State of Queensland (Queensland Mental Health Commission) [2022] QIRC 343
2 citations
Jump To
Cite 1 - [2022] QIRC 343
Cite 2 - [2022] QIRC 343
Stievano v State of Queensland (Queensland Health) [2022] QIRC 404
2 citations
Jump To
Cite 1 - [2022] QIRC 404
Cite 2 - [2022] QIRC 404

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.