Andrew Douglas: The major case now, which is the Westpac case.

Nina Hoang: Yeah. Chandler, Westpac.

Andrew Douglas:  Okay. So Chandler, Westpac, this is the case where I think that DP Roberts mixed the streams to quote “Ghostbusters.” I think there is a legal flaw that sits in the middle of this, but talk about the facts a bit and then let’s come back and talk about what the law is.

Nina Hoang: Yeah so this was a employee who worked remotely and she was able to do that for a long period of time. She wanted to continue it because she had two 6-year-old children and she needed it to be able to pick them up from and drop them off from school. Westpac said…

Andrew Douglas:  And it was a change in a family circumstance, ’cause her husband couldn’t do it.

Nina Hoang: Yeah. So it really was just on her to do it.

Andrew Douglas:  Yeah.

Nina Hoang: And Westpac basically just said, “Nope, we’ve got a hybrid working policy where you have to spend some of the time in the office. We don’t believe that you’re going to be able to work productively, so, no.”

Andrew Douglas:  So there’s a couple of interesting things for her. There were reasons which don’t fall within what the section says.

Nina Hoang: Mm.

Andrew Douglas:  But there is a past history of accommodating it.

Nina Hoang: Yeah.

Andrew Douglas:  Where there wasn’t the same need in any event.

Nina Hoang: Yeah. And there was no consultation or anything.

Andrew Douglas:  So no consultation.

Nina Hoang: Yeah.

Andrew Douglas:  No, no examination of business needs. Just that.

Nina Hoang: And they didn’t put that in the writing, which is a requirement.

Andrew Douglas:  Yeah. So they lost. But in the middle of what the deputy president said, his view was, you could take into consideration matters that fell outside the section to determine it. I don’t think that’s what the law is at all. What I think is they’re caught on the base of saying, I didn’t put up sufficient business reasons and I’ve already done in the past. I can’t really complain. So I think what’s happened is there is what in lawyers would call arbiter, which is not Prince, not not a priest, and but argument that suggests that you can agitate issues that are broader than the clause, the clause under the Fair Work Act. I don’t think that’s right. I think they’re caught in a position where they can’t say no because they’ve already permitted in the past.

Nina Hoang: Yeah.

Andrew Douglas:  And they failed in all their business reasons. If they’d have come back with good business reasons.

Nina Hoang: Yeah.

Andrew Douglas:  I think this could have been differently decided.

Nina Hoang: Yeah, I agree. Because their whole thing was that she couldn’t work productively, but there was so much evidence that she’d been able to do that fine with her kids.

Andrew Douglas:  That’s right.

Nina Hoang: And with her team as well. So I think this case has been used by the union in the media as this is clear that everyone can work from home. And it’s almost like fearmongering. Like I think I saw a article in AFR where they’re like, what does this come to employers are going to have to do?

Andrew Douglas:  No, it’s nonsense.

Nina Hoang: Yeah. And it’s not like, it’s a very unique set of facts. The employers screwed up in this case.

Andrew Douglas:  And this is more of a stoplight argument.

Nina Hoang: Yeah.

Andrew Douglas:  You can’t turn around and say you can’t do it when you’ve done it before. So they’re not really looking at the facts of whether it was a proper need from her.

Nina Hoang: Yeah.

Andrew Douglas:  They’re saying, she’s raised it and you haven’t dealt with your onus.

Nina Hoang: Yes.

Andrew Douglas:  Of managing.

Nina Hoang: Had they come back with an reasonable alternative, this might’ve been very different.

Andrew Douglas:  It would’ve been.

Nina Hoang: Yeah.

Andrew Douglas: So look, I thought, I think, I think it’s worth us breaking it apart and showing, look, there are some problems I think in the decision, but overwhelmingly if that part of the decision would to be followed in any other court

Nina Hoang: Yeah.

Andrew Douglas:  It would never make it through the federal court.

Nina Hoang: Yeah. I agree

Andrew Douglas: So that’s my view. Let’s go over the case study.

Nina Hoang: Yep Noel was a FIFO plumber who worked in Western Australia. His wife Joan worked in Melbourne at Watts Accounting Service. They had three children, age 11, eight and five. Joan was a tax advisor and worked from home two days a week. Watts had allowed her some flexibility around school drop-offs and pickups when Noel was away. This meant she worked from home an extra two days per a week while her parents helped on the remaining day.

However, Joan found managing the children increasingly difficult when Noel was away, both practically and emotionally, the children were more unsettled and she was feeling the strain. Joan’s role involved direct client contact and mentoring junior accountants. It had been noticed that when she was not in the office team performance dropped and billable hours declined. Her manager, Bud, observed that Joan had become tense, irritable, and anxious at work. Her performance had declined over the past year a period that coincided with Noel starting his FIFO job 15 months earlier.

Joan then requested a flexible work arrangement to work from home whenever Noel was away. Watts refused the request on business grounds, noting that Joan lived close to her extended family and had previously spoken about how supportive her parents were. They lived just two blocks away. After the refusal, Joan provided a medical certificate saying that her children required her care when Noel was away and took carer’s leave, for which she had more than a hundred days accrued. After 90 days her employment was terminated, relying on her own medical certificate as evidence that she was unable to perform her role. Oh, problematic.

Andrew Douglas:  Yeah. So what was the basis for Joan’s flexible work? Did it fall within the act?

Nina Hoang: Yeah, it’s her caring responsibilities.

Andrew Douglas:  Yeah. But no evidence of it delivered. See, I think that Joan was in trouble from day one because she was unable to show that the extra care that was required to be given was one that had to come from her.

Nina Hoang: Well she said, but Noel was away.

Andrew Douglas:  Yeah.

Nina Hoang: So I think, but I think it would’ve been they had to put that to her.

Andrew Douglas:  That’s exactly right. Yeah, yeah,

Nina Hoang: So they’d have to question it, not just be like, no.

Andrew Douglas:  Yeah but that’s her vulnerability. That it may, without proper evidence of it, it may fall outside. So this is the Roberts, the DP Roberts issue. It may fall outside the provisions of the act, but it would be a dumb thing to do. Okay, but let’s go onto the what the next question.

Nina Hoang: What were the business reasons for refusal and were they defensible?

Andrew Douglas:  Well, there is a defence, but the issue is what was the alternative that could have been offered? So the business defence was good. When you’re away and if you’re away too much performance falls off. You’re a mentor, you need to be present, you need to have client contact. So there are times when you need to be at work. But they didn’t address that by providing an alternative, they simply said no.

Nina Hoang: But also like if she’s got legitimate caring reasons, it can’t be the, like the business reasons over top. It’s got to be a balance between both.

Andrew Douglas:  I know it does. But equally, if her being apart damages the business and requires other resources and things to meet those requirements, then they are good business reasons. So what we’ve got here is a lack of evidence at the moment and a lack of challenge. But there is pretty good business reasons that could be articulated if the right inquiries and consultation occurred. Can a medical certificate be challenged? And if so, how?

Nina Hoang: Well, it would depend on what it said, but you’d need to ask for more details about what specifically what her caring arrangements were and for how long, so you-

Andrew Douglas:  Yeah, so-

Nina Hoang: Kind of how you do like an mean.

Andrew Douglas:  Yeah. so the answer is the short answer is unless the child were kids with special needs, being present the whole time is a nonsense, okay?

Nina Hoang: Yeah but you would need to question the doctor. Don’t just make that assumption.

Andrew Douglas:  No, don’t make it. So you’d ask the questions, the doctor would refuse to respond as they always do. You’d have to get an IME separately. The IME would then test and check the facts that sit there. Then you would be in a position to make a move if needs be. But I thought my question four was a fun question, ’cause most people would say yes you could.

Nina Hoang: Was the termination of employment lawful on what? No, you can’t without doing the background steps.

Andrew Douglas:  Well no, no you can’t anyway, because she’s still got-

Nina Hoang: She is, it’s a right to take your, it’s breach of general protections.

Andrew Douglas:  Yeah. Yeah. It’s a temporary absence. So temporary absence provisions say 90 days all right? Or until such time as you’ve used all your leave up. So you would still be a general protections breach by terminating at this stage, even if what you thought was right because she still has personal leave up her sleeve. You have to wait for after all the personal leave is used, whether that’s 150 days, the day after that you can then get around the general protections thing.

Nina Hoang: But you are also terminating her for her exercising her workplace right to take carer’s leave.

Andrew Douglas:  I know there’s also, I’m just getting around-

Nina Hoang: And also it’s clearly linked to the flexible work request. I think they would lose.

Andrew Douglas:  No, they would definitely lose. I’m just trying to say at the 90 day period people feel, oh, the temporary absence provision’s gone. And I just want to make it clear it’s not.

Nina Hoang: No.

Andrew Douglas:  But at that stage, you had compelling evidence that the carer’s responsibilities were such that no reasonable adjustment could be made. And she’s not going to be present at work. You’ve got the foundation of Toyota and Studio. She goes through this three step process. You could, but it’s got to be after the personal leave has been utilised. You can’t do it otherwise, or it’s a clean general protections claim against you.

Nina Hoang: Yep.

Andrew Douglas:  So there you go. That’s it for this. I thought we’ve had fun doing the law together. We didn’t talk before we came in today, which is probably pretty obvious ’cause we’ve disagreed on everything. But nonetheless, it’s been a really interesting, interesting time. And thank you for watching. So thumbs up.

Nina Hoang: Give us a thumbs up. Bye.

Andrew Douglas:  Cheers. Bye-bye.