‘Frivolous’ flexible work claims a drain on business: retailer

New Aim CEO Fung Lam said the company was “dealing with the uncertainty and dispute potential caused by employees making unreasonable flexible work demands that, if agreed to, would drastically impact workplace culture, collaboration and innovation, and be costly for the business to arrange”.

“Where flexible work arrangements are rejected for legitimate reasons, New Aim, like many businesses, fear the potential of facing frivolous, lengthy and costly claims on the basis employees may see it as an entitlement,” he said.

“These frivolous claims are not only a waste of the judicial system’s time and resources, but are remarkably expensive for businesses to defend.”

Ticketek recently successfully defended court action over its refusal to let an employee work remotely while he went holidaying in South Korea, and insurer IAG won a case where an employee sued for unfair dismissal after tracking software found she wasn’t working enough while at home.

Last month, in the first ruling over new appeal rights for flexible work requests, the Fair Work Commission recognised the productivity and learning benefits of working in the office when it upheld salary packaging provider Maxxia’s refusal to let an employee work at home full time.

Workplace Law principal Athena Koelmeyer said the rise in legal actions reflected a transition phase as businesses and employees worked to find the post-pandemic balance between employee flexibility and workplace productivity, and she anticipated “another six months of equalisation”.

“Employers are slowly starting to realise engagement and supervision, particularly with new team members as they learn the job, needs some sort of physical presence and that’s being resisted by people who may have legitimately made their own arrangements like moved to the country – lots of people did – or moved overseas – lots of people did,” she said.

Mr Lam said employers and employees were “at a crossroads” and the increase in flexible work-related claims should be “a cause for concern”.

While New Aim allowed staff to work flexibly where there was genuine need – and many did – the company was a proponent of working in the office and offered perks like free gym classes to entice staff to the office.

“We also understand that many businesses invest significant resources into training the next generation of employees, who often suffer the most from a lack of support that flexible work arrangements may cause.”

Mr Lam said employees who abused flexible work arrangements should be penalised, “whether that be through performance or disciplinary related consequences”, and employers should be able to show staff data on how excessive flexible working can affect productivity.

In the Federal Court case, the employee’s request to work in New Zealand full time “was incompatible with both their level of experience and the requirements necessary to effectively fulfil their position”.

Due to the company’s experience, he welcomed the recent decisions clarifying flexible work arrangements must be balanced with employers’ needs and “should not be viewed as an entitlement”.