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Hair v State of Queensland (Queensland Health) [2021] QIRC 422 (10 December 2021)
Last Updated: 14 December 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
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PARTIES:
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Hair, Jennifer
(Appellant)
v
State of Queensland (Queensland Health)
(Respondent)
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CASE NO:
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PSA/2021/365
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PROCEEDING:
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Public Service Appeal – Fair Treatment Appeal
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DELIVERED ON:
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10 December 2021
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MEMBER:
HEARD AT:
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Pidgeon IC
On the papers
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OUTCOME:
CATCHWORDS:
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The decision appealed against is confirmed.
PUBLIC SERVICE -
EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - appeal
against a fair treatment decision
- where the appellant requested a flexible
working arrangement to enable remote work from interstate - where the employer
denied
the request on the basis of face-to-face contact being a requirement of
the position - whether the decision was fair and reasonable.
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LEGISLATION:
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Reasons for Decision
Background
- [1] Ms Hair (the
Appellant) is employed by the State of Queensland (Queensland Health), (the
Respondent) as Human Resources Advisor
and acting Workplace Relations advisor at
the West Moreton Hinterland Hospital and Health Service (West Moreton
Health/WMH).
- [2] Ms Hair says
that the team in which she provides human resources services are based in
Goodna, Gailes, Gatton, Ipswich, Wacol
and Borallon, and include multiple
secured mental health facilities, correctional centres and youth-based detention
centres.
- [3] On 7 January
2020, Ms Bain, Manager, Human Resources, approved a flexible working arrangement
in which Ms Hair was working remotely
for one day per week in addition to
undertaking compressed hours working full-time over four days per week.
- [4] On 26 March
2020, Ms Hair commenced working remotely on a full-time basis whilst undertaking
the role of acting Workplace Relations
Advisor.
- [5] On 22
February 2021, Ms Hair returned to her substantive role of Human Resources
Advisor in a part-time capacity working 45.6
hours per fortnight in addition to
working concurrently as acting Workplace Relations Advisor for 30.4 hours per
fortnight.
- [6] Ms Hair says
that since 26 March 2020, she has worked wholly remotely, except for
approximately three days where she attended
the workplace.
- [7] On 10 June
2021, Ms Trayling, Human Resource Business Partner completed a performance
review with Ms Hair in which she advised
her that she exceeded or met all
leadership standards.
- [8] Ms Hair says
that during that performance review, she raised how important it was for her to
continue working remotely and that
at no stage did Ms Trayling raise any issues
about working remotely.
- [9] On 21
September 2021 Ms Hair submitted a request for flexible working arrangements
(FWA) to work remotely from New South Wales,
as her partner was starting a job
and they wished to relocate. Ms Hair requested that she be able to continue to
work remotely on
a full-time basis and compressed hours working 4 days per week.
Ms Hair also requested, in addition to the existing arrangements,
that is that
she be able to work between both Queensland and New South Wales
(NSW).[1]
The decision being appealed
- [10] In a
detailed email response dated 11 October 2021 from Ms Bain, Ms Hair's request
was denied following consideration of a range
of matters including: the
principle of flexibility, nature of work and location of work.
- [11] Ms Bain's
letter identified that the initial flexible arrangements were largely a response
to the 'urgent need to limit the number
of people in the workplace due to a
public health emergency'. Ms Bain said that while that initial pressure has
eased and some degree
of working remotely has been retained, 'it is reasonable
to anticipate that the business will welcome us back and we will once again
be
able to spend more time alongside clients in the workplace'.
- [12] Reference
was made to work being undertaken by Taresa Rosten on 'Future Ways of Working'
and Ms Bain said that she thinks that
'work will help articulate some principles
of flexibility including some reasonable parameters around remote
working'.
- [13] Ms Bain
acknowledged that it is possible for Ms Hair to complete many of her obligations
remotely and that there are a range
of work tasks, including attending meetings
and in some cases delivering training, which can be done effectively in online
environments.
However, Ms Bain identified some elements of the HR Advisor role
which she believes 'would be very difficult to do remotely'. Such
elements
included; in-person attendance on interview panels; providing in-person
assistance to clients to assist with coaching; preparing
managers to do
performance management, give performance feedback and assist with facilitated
discussions.
- [14] Ms Bain
said that while Ms Hair's current client group might be comfortable with the
bulk of this work happening online, it is
possible the client group may change
in the future.
- [15] While
acknowledging Ms Hair's suggestion that she could spend one week a month in
Brisbane, this would not account for matters
'which in our world, can be
unpredictable and occur with very short notice'.
- [16] With regard
to the Acting AO6 Senior Workplace Relations Advisor role, Ms Bain acknowledged
that many of these obligations can
also be met remotely. However, Ms Bain
said that there are occasions where attendance in person would be required on
short notice
i.e. representation here at the Commission or interviewing subject
officers or witnesses. While Ms Hair had offered to fly up to
Brisbane on short
notice, Ms Bain said that travel time could mean she would not have sufficient
time to prepare and that back up
for a colleague in the event of illness would
be limited. Ms Bain said that if Ms Hair were working remotely from NSW, it
would fall
to her colleagues to cover requirements where in-person attendance
was required on short notice.
- [17] With
reference to the impact on the team, Ms Bain noted that 'the spread of duties
will not be fairly distributed amongst the
team, potentially creating inequity'.
Ms Bain also said that as the in-person parts of the role are often greater in
terms of emotional
contribution, she was concerned that this has the potential
to create an imbalance within the team.
- [18] Noting that
Ms Hair's request was to work 'fully remotely' from New South Wales with
negotiation of travel to Queensland for
face-to-face contact; Ms Bain said that
providing a workers' compensation insurance policy would not be a major
barrier.
- [19] However, Ms
Bain did identify some barriers. These included that at the time of making the
decision, the majority of NSW is
classified a COVID-19 hotspot and travel, if
approved, would require a mandatory 14 day hotel quarantine. This would mean
that
any in-person requirement would need a notice period of at least 14 days.
Ms Bain notes that she thinks it would be very difficult
to demonstrate to the
Chief Health Officer's satisfaction that Ms Hair is an 'essential worker' for
purposes of accessing different
requirements. Ms Bain said that it was unknown
when changes would be made and whether they might be reinstated in the future.
- [20] In
concluding her decision, Ms Bain said
My considerations
I appreciate that your request is based upon your desire to relocate to New
South Wales to enable you to move interstate with your
partner. On a personal
note, I am very happy for you and for your new relationship. I can certainly
understand that you would want
to be with your partner as he progresses his
career.
In the context of growing vaccination rates in Queensland and New South
Wales, it is possible that interstate travel will become easier.
If this does
occur, it is possible that mandatory 14-day quarantine will not be required.
However, even without that requirement,
it would still be very difficult for you
to adequately respond to a request for in-person support in a timely way. And,
as you know,
a request for attendance at a QIRC hearing will usually occur at
very short notice, meaning that you would be unlikely to be able
to support your
colleagues by sharing that requirement of the Workplace Relations role.
Similarly, it is not unreasonable to anticipate
that your client would, on
occasion, request your attendance in person and with short notice to assist on
an interview panel, provide
coaching/guidance to a line manager, resolve a
conflict, or facilitate a discussion. I am unable to envision a sustainable
model
which would allow you to commute from New South Wales on short notice to
fulfil the expectations of your substantive role
My decision
For the reasons outlined above, I am unable to support your request for a
remote working arrangement from New South Wales. I have
given consideration to
the reason for your request and to the potential impact on you for this request
to be declined. On balance
however I am of the view that it is not possible to
implement your request while also maintaining equity and fairness for the rest
of the team.
As you know, HR policy C5 provides employees with the opportunity for review.
You may wish to escalate your request to Taresa for
fresh consideration and
response; or, you may lodge a complaint; or, you may lodge an appeal with the
QIRC.
I want to assure you that I have given this a lot I thought; I haven't taken
this decision lightly. I am mindful of the precedent
which would be set, not
only for our team but for the whole organisation and more widely for QH. Our
roles have such a strong emphasis
on coaching line managers and uplifting their
capabilities, and sometimes this just needs the in-person touch. Taking
everything
into account, I can't see a way that I can support your request.
- [21] In deciding
this appeal I am considering whether it was fair and reasonable for Ms Bain to
deny Ms Hair's request for FWA.
Is the Appellant entitled to appeal? Respondent submits 'appeal not
competent'
- [22] 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)".
- [23] The appeal
notice was filed with the Industrial Registry on 15 October 2021 within 21 days
of the decision being received on
11 October 2021. I am satisfied that the
Appellant has lodged the appeal within time.
- [24] WMH submits
that the Commission should decline to hear the appeal for failure to comply with
the procedures contained in the
Individual employee grievances Directive
11/20. WMH says that the Commission may decide that it will only hear an
appeal under s 194(1)(eb) of the PS Act if the commission is
satisfied that the
employee has used the procedures required to be used including the individual
employee grievance directive.
- [25] WMH says
that it is not in dispute that the Policy provides that an employee may lodge an
appeal directly to the Commission[2]
but submits that 'given the technical human resources and employee relations
positions she occupies, Ms Hair is well acquainted with
the relevant procedures
but made no attempt to engage with the decision maker or the Health Service
about the decision.
- [26] Ms Hair
says that the decision did not suggest she was required to follow an alternate
process and the decision letter provided
her with three options, one of which
was to appeal to the Commission. Ms Hair also notes that the FWA Policy states
that an appeal
to the Commission is a valid option and does not explicitly state
that a complaints process or review by the delegate's supervisor
is required
prior to lodging an appeal.
- [27] I have
considered the submissions of the parties on this matter and I have decided that
Ms Hair's appeal is 'competent'. It
is curious that WMH would request that the
Commission not hear the appeal when an appeal to the Commission was clearly
communicated
to Ms Hair as one of the options open to her if she was unhappy
with the decision.
Appeal Principles
- [28] 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".
- [29] 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.
- [30] A public
service appeal is not an opportunity for a fresh hearing, but a review of the
decision arrived at by the decision maker.
To determine the appeal, I will
consider whether the decision of 11 October 2021 was
fair and reasonable.
- [31] In deciding
this appeal, s 562C(1) of the IR Act provides that the Commission
may:
(a) confirm the decision appealed against; or
...
(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.
Grounds of Appeal
- [28] Ms Hair
includes detailed submissions with her appeal notice. I have read all of these
submissions and note that they are largely
summarised and reflected in the
points listed under the heading 'Why the decision is unfair and
unreasonable':
- Ms
Bain has not considered the principles outlined in the FWA Policy and the FWA
Guideline, specifically by considering the application
on its own merits.
- Ms
Bain has been unable to formulate reasonable grounds as to why the arrangement
would not be successful and has based this instead
on hypothetical issues that
have not occurred in the last 18 months, if not longer.
- Ms
Bain has not worked with me to find solutions that best meet work, team and
personal needs, which considering Ms Trayling was not
involved in the process
would suggest that she has not been able to provide her commentary on how it
would work best with the team.
I am concerned that Ms Prince may also not have
been part of providing information noting that she would have been able to
articulate
the role that I have undertaken since 22 February 2021, as the
Workplace Relations Advisor. Had Ms Bain engaged with me further in
relation to
this I could have explored further options with her such as including a 6-month
trial period, or a different frequency
of working - for example two weeks in
Queensland for every 4 weeks in NSW, or one month per quarter in Queensland.
- Ms
Bain has not considered that I have been able to perform both roles successfully
and to a high standard working remotely and to
date no concerns have been raised
with me by Ms Bain, Ms Prince, Ms Trayling, other team members or my client
group.
- Ms
Bain has not considered the significant impact that this will have on my
personal relationship, noting my partner who works in
the Army, has been posted
to Sydney temporarily. I do not believe that Ms Bain has considered how the West
Moreton Health region,
which contains of one of the largest Defence Force bases,
can support me in what will already be challenging circumstances for me
both in
a personal and work environment following the posting of my partner who is
employed by the Army.
- Ms
Bain has not considered alternative options and instead declined the request
without due consideration around the key principles.
Ms Bain has not offered any
alternatives around what may suit the business despite me acknowledging to Ms
Bain that I am aware that
flexibility will be key in this arrangement and I
demonstrated my willingness to negotiate timeframes.
- [29] Ms Hair
seeks a decision allowing a trial of her requested FWA to occur for a period of
12 months, with a six month review mark.
Department submissions
Background
- [30] By way of
background, WMH says that in March 2020, the entire Human Resources team entered
temporary full-time remote working
arrangements in response to the Public Health
Directions implemented to limit the number of employees in workplaces during the
early
stages of the COVID-19 pandemic.
Ms Hair's application
- [31] WMH notes
that the substantive change requested by Ms Hair in her application of 21
September 2021 was that she be located in
New South Wales rather than in
Queensland. WMH says that the application initially provided no commitment
with respect to regularity
or frequency regarding the extent to which she would
be in Queensland.
Considerations for request for flexible working arrangements
- [32] Clause 2.1
of the QH Flexible working arrangements Human Resources
Policy[3] (the Policy) sets out the
relevant considerations in deciding whether to approve a request for flexible
working arrangements, which
are to be decided on a:
(a) Case-by-case basis using a team approach that considers fairness, diversity
and inclusion, the guiding principles and legislative
and operational
requirements.
- [33] The Policy
is to be read in conjunction with the Guideline, Clause 5.1 which sets out the
relevant criteria to be applied when
assessing requests:
(a) Each request should be given due consideration on a case-by-case basis, with
a starting position of curiosity and exploration
about how we can make this
work;
(b) Take a strategic approach to flexible working arrangements by identifying
the benefits to the work unit; and
(c) The focus of the decision should be on potential outputs, outcomes and
performance, rather than time spent in the workplace.
- [34] With regard
to the decision maker's approach to cl 2.1 (see [32]), WMH submits that it
supports flexibility in the workplace.
WMH is required to consider the effects
of the request on Ms Hair's current client base, any future client base she
would be expected
to service in line with her position and the equitable
division of service within the team.
- [35] The
flexible arrangement which led to Ms Hair working remotely on a full-time basis
arose in response to the COVID-19 pandemic
and applied to the whole team. The
team is now looking to 'find the optimal blend of remote and in person
working'.
- [36] An
expectation across the team is that meaningful support will be provided to
clients and this can include being available to
attend workplaces in person.
- [37] The crux of
the WMH submissions and the decision is the unviability of Ms Hair's request to
live and work in NSW in an environment
where the provision of service is being
'rebalanced' as discussed at [35]. WMH submits that it is sympathetic to
Ms Hair's personal
circumstances and is committed to finding a solution
that balances the personal benefits to Ms Hair of working remotely and the
operational
requirements of the
WMH.[4]
- [38] Allowing Ms
Hair to work as per her request would set a precedent which cannot be
accommodated in a fair and equitable manner
across the team in which she works
and 'would inevitably increase the workload of others'.
- [39] WMH lists
key accountabilities contained in the human resources advisory role descriptions
which it says are consistent with
an ability to present and provide face to face
interpersonal support and assistance to client
groups.[5] WMH says that the key
accountabilities of the role require delivery of 'hands-on support' and
maintenance of networks and support
structures which may not be optimally
achieved through tele-commuting from New South Wales.
Benefits to the work unit
- [40] WMH submits
that it recognises the benefits of flexible working arrangements for both
employees and the Health Service and that
WMH is committed to allowing and
enabling flexible work arrangements that do not prohibit the employee from
fulfilling their role.
- [41] WMH
submits that it is difficult to see how Ms Hair could be based in NSW and fulfil
the key accountabilities of her role in
the context of the WMH model of service
delivery when considering the importance of interpersonal connection across
teams and with
clients. This position is exacerbated by the COVID-19 border and
travel restrictions which are unpredictable.
Outputs, outcomes and performance
- [42] WMH says
that Ms Hair is a valued and experienced employee and that her performance is
not in question. It is necessary that
Ms Hair be available to travel to and
meet clients within the remit of WMH. It is not possible to provide the optimal
level of support
to clients in an effective, timely and efficient manner if Ms
Hair is based in NSW.
- [43] WMH says
that while Ms Hair has not provided a significant amount of face-to-face support
and advice in the last two years, it
remains a requirement of human resource
advisory roles to do so. It is not disputed that during the time that the
impacts of COVID-19
were experienced, Ms Hair successfully telecommuted to a
certain extent.
- [44] Ms Hair's
request is not that she telecommute from a location which is a reasonable
distance from her ordinary place of work,
such that she could attend her
ordinary place of work, at a short notice if required.
- [45] It is not
practical for WMH to agree a specified number of times per month in which
Ms Hair would travel from New South Wales
to West Moreton region where it
is impossible to predict when a critical incident requiring a human resources or
employee relations
response might arise.
- [46] WMH says
that generally, it is a matter for the State, as an employer, subject to any
applicable law or industrial instrument,
to determine how its employees perform
the duties of their positions.
- [47] WMH submits
that Ms Bain expressly considered the benefits of flexible working and the
nature of the work performed by Ms Hair
when making her decision and that this
is evidenced by the Outcome email. WMH submits that the decision was fair and
reasonable
and justified by the operational requirements of the Health Service
and Ms Hair's role requirements.
Ms Hair's further submissions
- [48] I have read
and considered all of Ms Hair's submissions, even if they are not mentioned
here.
- [49] Ms Hair
submits that on 8 October 2021, she advised Ms Bain that she would be 'willing
to consider working one week in Qld per
month and that I would be more flexible
if required'. Ms Hair says that Ms Bain did not enquire further as to how
flexible this
could be and did not expand on any alternative options that could
be implemented.
- [50] Ms Hair
says that there have been no ongoing consultation processes in relation to
client group changes and that Ms Bain's decision
has been based on a
hypothetical basis.
- [51] Ms Hair
says that prior to COVID-19 she was working remotely 25% of the time.
Ms Hair attaches documents demonstrating that
the team has now moved and
says that remote working arrangements were not only because of COVID-19 but also
because of relocation
of services due to 'master planning'. Ms Hair says that
she is not aware if a return to the office has been raised with any other
individuals who also work completely remotely.
- [52] Ms Hair
questions the Respondent's assertion that working in an office environment would
foster a team environment when the new
office does not enable the whole team to
be attend the workplace.
- [53] Ms Hair
says that no documentation has been provided to support the 'alleged rebalancing
of remote and in-person working' and
says that there has not been an issue with
her performing the role remotely for 19 months. Further, Ms Hair says that WMH
has not
demonstrated how they believe the request is unviable.
- [54] Ms Hair
says that no concerns have been raised by client groups that they have not been
provided with 'meaningful support' during
the 19 months she has worked
remotely.
- [55] Ms Hair
says that her request was not considered on a 'case by case' basis and that WMH
has demonstrated that the decision was
made with a focus on the potential for a
precedent to be set. Ms Hair says that this contradicts the FWA policy and
guideline and
that what may be approved now, may not be approved for another
party.
- [56] Ms Hair has
consulted with her colleagues as to whether they were consulted about her
request and says that there is no evidence
that such consultation
occurred.
- [57] Ms Hair
says that her role description is silent on the manner in which the key
accountabilities of her role are to be undertaken.
Ms Hair says that whilst
working full-time remotely, she has completed client engagement through phone,
email and Teams and this
has allowed prompt and effective service which her
client group has been receptive of.
- [58] With regard
to WMH's submission that short notice, in-person support may be required, Ms
Hair says that this is not reflective
of the work environment. Ms Hair says
that in the last 19 months she has not been required to attend in-person and
that there has
not been an inequitable distribution of workload across the team.
- [59] Ms Hair
says that during her conversation with Ms Bain on 8 October 2021, Ms Hair
indicated her willingness to be flexible and
to return to Queensland outside of
the week that she indicated she would be willing to be in Queensland. Ms Hair
says that at this
stage there are approximately 40 flights per day from Sydney
to Brisbane which means that it is feasible that she could be in Brisbane
within
a short period of time.
- [60] Ms Hair
says that a 'critical incident' of the type described as requiring urgent
in-person attendance is likely to involve the
Director level or higher
involvement within the organisation and would not be her responsibility.
- [61] Ms Hair
says that unpredictable border and travel restrictions should be given limited
weight given it is uncertain how long
these conditions will continue to be
imposed.
Respondent's further submissions
- [62] In weighing
up the relevant considerations, it is necessary and appropriate for the decision
maker to contemplate whether approving
the request may cause an imbalance of
workload or set expectations in the team that others should also be able to
access similar
arrangements.
- [63] Ms Bain
consulted with the relevant leads within the Human Resources team prior to
making the decision. It is not current practice,
nor necessary or appropriate
for Ms Bain to consult with all team members about Ms Hair's request
specifically. Nor is it proper
or necessary to undertaken focussed consultation
with Ms Hair's colleagues or client groups.
Impact of the COVID-19 response
- [64] In recent
months, the Human Resources team of WMH has expressed a need to connect in
person more frequently, both as a team and
with client groups. Feedback from
client groups indicates that they value in person support and guidance being
provided from time
to time.
- [65] In January
2021, WMH undertook a confidential online survey of client groups focusing on
how the Human Resources team can best
support and engage with them. The results
were consistent in that client groups want face-to-face contact with members of
the Human
Resources team. Other feedback received from the survey indicates
client groups find it stressful when urgent support is required
and the HR
contact is at home; and being present in the workplace allows effective
communication and for HR Advisors to fully appreciate
culture and
climate.[6]
- [66] WMH submits
that while support was 'delivered differently' during the COVID-19 response,
that was an extraordinary situation.
Following a shift towards client groups
returning to in person working, the Human Resources team is expected to return
to a model
of service delivery making face-to-face assistance available on an
as-needed basis.
- [67] WMH says
that it has a demonstrated history of supporting flexible arrangements which
balance the benefits of remote working
with the need to engage with each other
an clients in person on a regular basis.
- [68] WMH agrees
that available desk space and seating has been reduced but says that the
reduction in desk allocation does not prevent
the People and Culture team from
attending the workplace in person on a regular basis and that it is not asking
team members to be
present 100 percent of the time.
- [69] WMH
maintains that it would be impracticable to agree to any HR team member being
interstate for the majority of their employment.
While WMH is eager to find a
solution suitable to both Ms Hair and the Health Service, working from
Queensland one weekend a month
will not be sufficient for Ms Hair to respond to
the needs of her client base, including in emergent situations.
Further submissions in reply from Ms Hair
- [70] On 2
December 2021, Ms Hair provided further submissions in reply to further
information raised in the Respondent's submissions.
Consultation with team
- [71] Ms Hair
says that it is difficult to her to provide a response to the submission that
WMH consulted with the relevant leads within
the Human Resources team prior to
making the decision as the 'relevant leads' have not been divulged and no
documentation of the
consultation has been provided.
- [72] Ms Hair is
concerned that Ms Trayling, HR Business Partner may have contributed to the
decision made despite removing herself
from the
process.[7]
- [73] Ms Hair
says that WMH have provided no documentation to support the claims made about
feedback from client groups and while WMH
says that the information was gathered
in January 2021, no action has been taken to implement this feedback into the
team.
- [74] Ms Hair
submits that there is no information to confirm that the feedback relates
directly to her client group or whether the
information may have been skewed to
larger workplaces. Ms Hair says that her client group is spread across WMH and
'does not have
the same expectation levels around face to face
communication'.
Consideration
- [75] As outlined
above, my task is to consider whether the decision of Ms Bain was fair and
reasonable. For the reasons which follow,
I have decided that it was.
FWA Policy (C5)
- [76] It is not
in dispute that the policy clearly supports flexible work options. The Policy
references the legislation which clearly
states that an employee may request
flexible working arrangements that change 'the place where the employee
works'.[8]
- [77] Cl 2
relevantly states:
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.
- [78] Cl 3 of the
Policy provides that
The approving delegate may approve a request in its entirety, in part,
subject to specific conditions or decline the request.
- [79] Cl 3 also
says that a decision to refuse a request is to be made only on reasonable
grounds and communicated to the employee
in writing. The decision must provide
the reason for the refusal.
- [80] For
completeness, I note that Ms Hair received Ms Bain's decision in writing and
that decision provided detailed reasons for
the refusal.
Consideration of the request
- [81] Cl 2.1 of
Attachment 1 to the Policy addresses consideration of the request. Consideration
of the request is to be on a case-by-case
basis using a team approach that
considers fairness, diversity and inclusion, the guiding principles, and
legislative and operational
requirements.
- [82] Cl 2.1 also
provides that the delegate must be able to demonstrate they worked with the
employee and the larger team to find
solutions that best meet work, team and
personal needs. Further, the delegate must be as fair and equitable as possible
while managing
the operational requirements of the work unit and ensuring
appropriate performance.
Context
- [83] I note Ms
Hair's submissions that she was working under a flexible working arrangement
prior to the 100 percent remote working
arrangements put in place during the
pandemic. I also note that under those previous working arrangements, Ms Hair
was working
compressed hours over a four day week, was working remotely for one
of those days and was not situated in New South Wales.
- [84] The
application involves working remotely 100 percent of the time and being located
interstate. It is unclear where Ms Hair intends
to move, but her submissions
refer to flights from Sydney to Brisbane. So I am assuming Ms Hair is
relocating either to Sydney or
a place closer to Sydney than other commercial
airports.
- [85] At the time
of Ms Hair's application, the WMH workforce, like many others, was in a process
of transitioning out of the COVID-19
working arrangements and as Ms Bain put it
in the decision 'it is reasonable to anticipate that the business will welcome
us back
and we will once again be able to spend more time alongside out clients
in the workplace'.
- [86] I
understand Ms Hair's submission that the decision should not be made based on a
'future state'. However, the submissions before
me make it reasonably clear
that there will be a transition from the remote working arrangements that have
been in place during COVID-19
and I do not think it is unreasonable for the
Respondent to take this into account when considering applications involving
employees
working remotely for the majority of the time.
- [87] From an
operational perspective, I find nothing unusual or unreasonable about the WMH
submission at [35], that following a period
of remote working arrangements
applying to the whole team, the team was moving to 'find the optimal blend of
remote and in person
working'. The decision letter makes reference to focused
work being done on ways of working that will inform flexible work approaches
and
'reasonable parameters around remote working'.
- [88] At the time
that Ms Bain was considering Ms Hair's application, travel from New South Wales
to Queensland required approval and
mandatory 14 day hotel quarantine.
- [89] So
essentially, one of the 'givens' of Ms Hair's request was that the result of
approving her request would be that WMH would
have an employee relations advisor
who would be working remotely and if required to be in the workplace in person,
would need to
fly to Brisbane and complete quarantine.
- [90] Even in a
situation where quarantine was not required and there are up to 40 flights a day
available, Ms Hair would require some
notice regarding a requirement to have her
attend a workplace in person. Ms Bain took this into account in her decision and
expressed
a reasonable concern that it would be difficult for Ms Hair to provide
in-person support in a timely manner.
- [91] It is
important to keep the above in mind when assessing the reasonableness of Ms
Bain's decision. In my view, it supports Ms
Bain's assessment that approving
the request would be unviable from a practical and operational perspective. I
understand that Ms
Hair had raised the possibility of working in Brisbane for
one week of the month or organising transport on short notice at her own
cost.[9] However, even in that
circumstance, at the time the decision was made, such an arrangement would
actually have required Ms Hair to
be in Brisbane for two weeks prior to the one
week of working in the office and cannot have realistically provided her with
the personal
outcome she was seeking through her application.
Nature of the role and work undertaken by Ms Hair and the team
- [92] I note that
Ms Hair submits that there is nothing in her role description mandating that the
key accountabilities of the role
must be undertaken face-to-face. Further, Ms
Hair says that she has successfully fulfilled the key accountabilities of the
role
while working remotely over the last 19 months.
- [93] I have no
doubt that Ms Hair, her colleagues and many public servants across the state
have successfully fulfilled their roles
in a range of flexible circumstances in
response to COVID-19. However, it is not unreasonable for an employer to
determine the operational
requirements for delivery of key accountabilities.
While an employee may prefer to work in a particular way, this needs to be
balanced
with the operational requirements of the employer.
- [94] The role
description for a Human Resources Advisor makes reference to complex case
management (end-to-end case management relating
to matters including but not
limited to grievance/dispute resolution, workplace investigations, industrial
matters, and performance
management).
- [95] Ms Bain's
letter acknowledges that many of Ms Hair's obligations can be completed
remotely. However, it also sets an expectation
regarding the availability of
human resources advisors to 'make themselves available for in-person assistance
to their clients'.
- [96] Clause 2.1
of the Guideline sets out a non-exhaustive list of flexible work options and
provides a description for each. With
regarding to Telecommuting, the
description says
Telecommuting means working away from the usual or designated work centre,
often at home. It can be for short periods or part of
a long-term arrangement,
and can occur on set days or arranged as the work demands. All the equipment
and resources needed to do
the job saftey should be accessible.
Telecommuting may not be practical if the job requires:
- Face-to-face
contact with customers, clients or team members
.....
- [97] Even if the
submissions of the Respondent regarding the outcome of the survey undertaken
with clients regarding delivery of services
were not taken into account, it is
clear that there will be times when the most appropriate, productive or
preferred way of providing
human resources advice and support will be
face-to-face. The remote working approach taken as a result of the COVID-19
pandemic
may have demonstrated that human resources support can be provided
remotely, however it does not follow that employers should not
seek to return to
some balance of the provision of face-to-face and remote provision of services.
- [98] In the case
of WMH, the provision of human resources advice is likely to be to workplaces
where some employees have continued
to attend in person throughout the pandemic
due to the nature of their work. It is not unreasonable for WMH to seek to
return some
of those human resources services to an in-person
model.
- [99] I note the
submissions of the parties regarding the new workplace seating arrangements. It
appears that arrangements are in
place to consult with employees and ensure that
desk space is available to employees when they are in the office. I understand
from
the submissions that flexible working arrangements apply to a number of
employees and that some team members are not in the workplace
100% of the time.
I am unable to comment on the capacity for the team to be together at once
in-person as I do not know what arrangements
are made to facilitate
this.
- [100] I find it
was fair and reasonable for Ms Bain to determine that, despite the way work has
been undertaken during the COVID-19
pandemic, there are a range of aspects of
the role that are likely to require in-person attendance.
Delegate must be as fair and equitable as possible
- [101] While each
application must be considered on a case-by-case basis, it was not unreasonable
for Ms Bain to consider the implications
of approving a 100% remote working
arrangement for an employee located in another state and far removed from the
geographical location
of both the office and the clients.
- [102] Ms Bain
envisages occasions when in-person attendance from the team will be required at
short notice. While Ms Hair says that
such occasions have not arisen over the
past 19 months, I do not think it is fanciful or outlandish for Ms Bain to
expect that there
will be times when Ms Hair's clients may require her in-person
attendance. It was reasonable for Ms Bain to consider that if Ms
Hair was
unable to attend to such requirements at short notice, it would be necessary for
another member of the team to do so and
that this may result in other members of
the team taking on additional workload.
- [103] Further to
this, it seems reasonable for Ms Bain to hold a concern that 'in-person
components of the role are often greater
in terms of emotional contribution' and
that a lack of ability to share this work equitably may create an
imbalance.
- [104] I note Ms
Hair's submission that Ms Bain did not undertake consultation with team members
and clients regarding Ms Hair's application.
I accept the Respondent's
submission that this was not a requirement for undertaking a consideration of
the application. With regard
to Ms Hair's concerns regarding the involvement of
Ms Trayling in the decision making, there is no evidence before me that Ms
Bain's
decision was made on reliance of any one member of the team. As Ms Hair
notes in her final submissions, the Respondent submits that
any interactions
between Ms Hair and Ms Trayling had no bearing on the
decision.
- [105] If it is
accepted that the employer has an expectation that human resources staff are
able to provide in-person support, sometimes
at short notice, it would be
difficult to envisage a scenario where other employees could also have an
application for 100% remote
work from a location far removed from WMH approved.
While it is fair for Ms Hair's application to be considered on a case-by-case
basis, it is also reasonable for Ms Bain to consider the broader implications of
approving the request.
Ms Hair's Grounds of Appeal
- [106] For the
reasons given above, I am satisfied that Ms Bain's decision demonstrates that
the principles outlined in the Flexible
Working Arrangements policy and
guideline were taken into account. Therefore, Ms Hair's first ground of appeal
is not made out.
- [107] I am
further satisfied that Ms Bain's decision articulates reasonable grounds for
refusing the application. The decision took
into account the way that work had
been undertaken over the past 18 months, the emerging needs of the employer and
the practicalities
of the proposed arrangement. Therefore, Ms Hair's second
ground of appeal is not made out.
- [108] It seems
to me that Ms Bain did talk with Ms Hair to attempt to find a solution (and is
still committed to doing so) but reached
the conclusion that an arrangement
involving Ms Hair living in New South Wales was not viable at the time. Ms Bain
had to consider
the application before her, and if other solutions raised in
discussion did not address the fundamental issue of Ms Hair's location
and
availability to attend the office in person, it was not possible for the
application to be partially approved or approved with
conditions. The policy
guideline envisages that not all types of flexible work will be suitable for all
roles or work environments.[10] Ms
Hair's third ground of appeal is not made out.
- [109] Ms Bain's
decision and the submissions of the Respondent clearly acknowledge that
Ms Hair has performed the roles successfully
and to a high standard while
working remotely. Ms Hair's performance was not in question or cited as a
reason for refusing the application.
Therefore, Ms Hair's fourth ground of
appeal is not made out.
- [110] Ms Bain's
decision acknowledges the personal impact that refusal of the request will have
on Ms Hair. Ms Bain explained that
she had given the decision a lot of thought
and had not taken it lightly. While I understand that the outcome of Ms Hair's
request
was not the one she was hoping for, there is no evidence before me to
demonstrate that her personal circumstances were not taken
into account. Ms
Hair's fifth ground of appeal is not made out.
- [111] Ms Hair's
final ground of appeal is that Ms Bain has not considered alternative options
and declined the request without consideration
around the key principles. It
seems to me that in circumstances where Ms Hair will be living in the vicinity
of Sydney and Ms Bain
had determined that Ms Hair's role involves both
face-to-face and the capacity to be present in person as short notice; it was
reasonable
for Ms Bain to consider that she was 'unable to envision a
sustainable model which would allow you to commute from New South Wales
on short
notice to fulfil the expectations of her substantive role'. There is an extent
to which proposing alternatives becomes
impractical when 14 days notice of the
need for attendance in person was/is a current requirement due to border
restrictions. I note
that while this application was declined, the submissions
of the Respondent demonstrate a willingness to try and find an option that
will
suit both Ms Hair and the organisation. Ms Hair's sixth ground of appeal is not
made out.
- [112] For the
foregoing reasons, the decision of Ms Bain refusing Ms Hair's flexible work
request is confirmed.
[1] Appeal notice filed 15 October
2021.
[2] Cl
5.
[3] Perusal of the policy
suggests that the clause referred to here is cl 2.1 of Attachment 1 to Policy
C5.
[4] Respondent submissions 2
November [34].
[5] Respondent
submissions 2 November [25], Complex case management relating to matters such as
workplace investigations, industrial
matters and performance management; HR
advisory and consultancy services; building and sustaining partnerships with
stakeholders
and facilitating working relationships which improve internal
capability and HR outcomes; coaching leaders and providing advice and
guidance;
and learning and contributing to the development of HR initiatives.
[6] Respondent submissions filed
23 November 2021, [14]-[15].
[7]
Previous submissions addressed interactions between Ms Trayling and Ms Hair that
led to Ms Trayling removing herself from the decision
making
process.
[8] Cl 2 refers to
Industrial Relations Act 2016, s
27.
[9] Appeal notice filed 15
October 2021, [14].
[10]
Guideline for Flexible working arrangements cl 2.
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