In a recent decision the Fair Work Commission has found that a Human Resources Manager was not forced to resign after her flexible work request was refused.
The Facts
The employee was a Human Resources Manager for Uniqlo. After a period of parental leave she made a flexible work request to return to work for two days per week.
After a meeting to discuss her request Uniqlo emailed her refusing the request. Its reasons included that a two-day week was insufficient to mentor junior and new team members, provide HR support to the company’s stores and for swift incident response.
The email also notified her, “If we can’t reach a resolution, you have the right to lodge a dispute with the Fair Work Commission regarding this matter.”
Subsequently Uniqlo gave her further alternatives including transferring to a position of Sustainability Lead initially for 2 days per week.
After further communications the HR Manager emailed her resignation, stating that Uniqlo had rejected her flexibility request unlawfully and that it amounted to adverse action.
She applied for breach of general protections involving dismissal.
The Decision
Her application was dismissed, the Deputy President of the Fair Work Commission finding that:
- There was no dismissal as she was not forced to resign.
- As a senior Human Resources practitioner she was aware of the process to initiate a dispute to the Fair Work Commission about Uniqlo’s refusal of her flexibility request. Also Uniqlo had notified her of her right to refer a dispute about flexible work to the Commission.
The Deputy President observed that he was not determining if Uniqlo had reasonable business grounds to decline the request.
The relevant point was that there was mechanism to deal with the dispute, which the employee was aware of.
Implications
For employers the case is a reminder of the importance of following the required process in responding to flexible work requests, including notifying employees of their rights to challenge a decision.
For employees who are unhappy with a refusal of a flexible work request, the case highlights the importance of following the dispute process set out in the Fair Work Act rather than resigning.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.