King & Wood Mallesons

Asia-Pacific 100 position: 2

Refusal of part-time work constitutes constructive dismissal

By Emma Newnham

The Fair Work Commission (FWC) has found an employer’s continuing unreasonable refusal of an employee’s request to work part-time was ‘inimical’ conduct constituting constructive dismissal.

This decision reminds employers of their obligations to: be aware of an employee’s right to request flexible working arrangements in any applicable enterprise bargaining agreement and the National Employment Standards (NES); fully explore flexible working arrangements if requested to do so; and ensure the reasonable business grounds upon which they refuse a request to work part-time are documented and will stand up to the scrutiny of the FWC.

The decision comes at a time when the right to request flexible working arrangements are in the spotlight. The Fair Work Amendment Act 2013 (Amendment Act), assented to on 28 June 2013, extends the right to request flexible working arrangements, including to parents of children who are of school age. Under the NES, an employer may only refuse a request for a change in working arrangements on reasonable business grounds…

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