Andrew Douglas: Main topic. I think that we’ve talked about, a lot about flexible work requests. Section 55, 56.

Monnette Samo: Yeah.

Andrew Douglas: We have a great case, okay? In the last five weeks, we’ve had three cases of people who’ve claimed flexible work requests based on age. And each case has said, “Look, I’m sorry, I’m not understanding the connection between age and your need for flexible work requests.” And so this is a case of two people who work for Shell, they did different jobs, suggesting that they should work job sharing even though they do different jobs.

Monnette Samo: Yep.

Andrew Douglas: I reckon this is one of the dumbest requests of all time, but they work less days, so they spend more worker time. One was to, had a bit of a back injury, wanted to spend more time at home.

Monnette Samo: Like, allow his wife to get used to him spending more time at home?

Andrew Douglas: I mean, that’s look in the mirror stuff. When you got to say that you know you’re in strife. But also, he didn’t know he could survive on less money. And the judges said, “Why don’t you put some in the savings account and see how you go?” Duh. And you’re still having the same shifts and how do you going to support?

The business decisions were so obvious, but what was lovely about this decision is once again, two people, both over 55, both saying they wanted to experience life more, better life because they’re older, but without a proper nexus as to what it’s intended to do, which is to build towards retirement. So really interesting case, but a great reminder that we are now starting to get greater integrity around flexible work requests that must go to the specific attribute that it’s protected under. This one didn’t go. So, there you go.

Monnette Samo: There you go.

Andrew Douglas: You ready to do a bit of reading?

Monnette Samo: Let’s see how quickly I can do it, Andrew.

Andrew Douglas: Okay.

Monnette Samo: Let me control this. Thank you.

Andrew Douglas: Over to now.

Monnette Samo: All right.

Andrew Douglas: I’m drinking my Andrew glass in case.

Monnette Samo: “George was tired of working at the counter at Bib’s Spare Parts. He was 62 and spent the first 25 years of his working life as a diesel mechanic. His shoulder ached, his knees were swollen, and he experience mild sciatica most days. He hated work. His boss, Celia, had spoken to him about several performance issues. Most of these involved his failure to manage inventory and enter the correct sales codes. George would laugh and say that he was demented, but he resented the complaints.

He spoke to his son, a suburban personal injury lawyer, and asked what he could do. His son asked whether he could afford to retire, and George said that he definitely could not. Some aspects of George’s administrative work arguably did not require him to attend the workplace, amounting to approximately 16 hours per week. His son suggested that he submit a flexible work request. This would allow George to spend more time at home with his grandson and dog without negatively affecting the business. The day before submitting the flexible working request to work from home two days per week, George was placed on a formal supervision plan because of his repeated administrative errors.

George submitted his flexible working request, explaining that he was over 55, experienced physical pain, found travelling tiring, and believed he could successfully work from home two days per week. Celia consulted with George about the request. She explained that he currently required direct supervision and that specialized knowledge of diesel engines,” engine spare parts rather, “Meant he was frequently needed at the workplace. She also raised two important concerns.

First, his performance needed to improve immediately because his errors caused financial losses to the business. Second, he held an important customer-facing role and was frequently required, on an ad hoc basis, to address complex customer concerns. Celia advised George that she would respond formally to his request. She invited him to submit, within seven days, any suggestions for addressing the concerns she had raised. George did not provide any suggestions. George’s performance went from bad to worse. On several occasions, he failed to record parts.”

Andrew Douglas: Reorder.

Monnette Samo: “Reorder parts, resulting in customers going to a competitor. The business had a strict reordering policy and George was aware of it. However, he simply forgot to place the orders. George became tired of Celia’s daily walk-by and check-ins. He felt that she was micromanaging him and complained to Alvin, Celia’s manager. Alvin listened to George’s concerns but said that Celia’s supervision appeared reasonable in light of George’s performance issues. However, he agreed with Celia.”

Andrew Douglas: “To speak to Celia.”

Monnette Samo: “To speak with Celia.” I can’t see.

Andrew Douglas: It’s all right. I read it.

Monnette Samo: “After speaking with Celia, Alvin was satisfied that her supervision was not intrusive and that it was respectful and fair. He called George to inform him of this conclusion. However, three days later, George received a show-cause letter from Alvin regarding his failure to reorder parts. George became extremely angry, sent Celia a rude text message and left the workplace without informing her to attend an appointment with his GP. At 5:00 PM Celia received a certificate of capacity.”

Andrew Douglas: There you go. So, the first question is, “Will George’s workers’ compensation claim succeed?” No. Because you can see that what George is agitating is part of a performance management process and that his conduct towards that would mean not a chance, not a chance at all. Okay. So, the next question is, “Will George’s flexible work request to work from home be successful?” The answer is, what do you think?

Monnette Samo: I would say yes to keep this guy out of my home. My face.

Andrew Douglas: No, it’s a big no, it’s a big no causse there’s very good business reasons. And one of the things that I’m trying to agitate in this is sometimes when you’re directly supervising someone, their presence is required. So here we’ve got requirement to supervise, specialized skills needed as and when in a business. I think he’d have no chance of getting up.

Monnette Samo: Yeah.

Andrew Douglas: “After his request to work from home was refused, George brought general protections claim. He alleged the request was refused for a prohibited reason that he had raised a psychological safety complaint. Is his claim likely to succeed?” I’ll give you another one.

Monnette Samo: No, don’t.

Andrew Douglas: No chance at all. No chance at all because Alvin has provided the reasons why.

Monnette Samo: Yeah.

Andrew Douglas: And he would have no possibility of saying Alvin wouldn’t be able to fulfil the negative obligation. So, “Will George’s departure from work and his text message to Celia be relevant at the discipline meeting and what is the likely outcome of the meeting and why?”

Monnette Samo: Yeah, it’ll be relevant.

Andrew Douglas: It’d be relevant, hugely relevant. And the answer is once his claim is rejected, his employment would be terminated. Okay? Leaving, just walking off the site without advising someone, sending abusive messages and causing the business significant loss. They’re all matters that sit under fair work regulations as 107, he’s gone. So how about that?

Monnette Samo: Got through it.

Andrew Douglas: You did very well with me interfering all the way and not knowing what I’m talking about. I don’t know how you’d do that. You’re incredible.

Monnette Samo: Thanks, Andrew. I’ll take the credit.

Andrew Douglas: Stay composed. Girl, I wouldn’t work with me. All right. Thank you very much. See you next week. Cheers.

Monnette Samo: Thanks, guys.