Relocation and flexible work
An employee sought a review of the agency's decision to not extend their flexible work arrangement beyond 12 months. The employee, who was based in Sydney, advised their supervisor that their mother who lived in Melbourne had become severely ill and required immediate assistance and care. The manager approved an immediate temporary transfer to the agency’s Melbourne office.
After commencing work at the Melbourne office, the employee sought a flexible working arrangement to work from Melbourne for a minimum of 12 months so that they could monitor their mother's health and be available to liaise with hospital staff regarding her treatment. The manager approved the employee to work from the Melbourne office for a total of 12 months and at the conclusion of this period, the employee would have to relocate back to Sydney.
The agency’s policy supported employees to work when, where and how they achieve their best outcomes, in a way that also meets the needs of the team and agency. Here, the employee was of the view that the decision to require a transfer to Sydney at the end of the existing 12 month arrangement was inconsistent with the policy. The employee reasoned that there have been no performance concerns, or evidence that indicated they were unable to perform the role successfully from the Melbourne office.
While COVID-19 and technological advances have shown remote working can be beneficial, section 25 of the Public Service Act 1999 provides that an agency head may determine the duties of an employee and the place or places at which the duties are to be performed. In this case, the manager indicated that the business need was for the employee to be located in Sydney in order to service clients most effectively and to facilitate cross-skilling and training of staff.
Further, the employee suggested that the agency had not given sufficient weight to their personal circumstances, including the significant impact of the decision to require a return to Sydney will have on the mother's health and their own mental health. Although the Merit Protection Commissioner (MPC) carried genuine sympathy for the employee's personal situation, the agency had provided immediate and significant flexibility in response to the employee's situation but there was a limit to what the business could accommodate in the long term.
The MPC was satisfied that the decision to approve the 12 month flexible work arrangement was consistent with or more generous than the policy. The decision indicated that working from another city for longer than 12 months could reasonably be considered a permanent relocation which falls outside the scope of a flexible work arrangement.
Working at 'an alternative site' does not mean another office in another State on an ongoing basis. The MPC acknowledged that the employee had ongoing obligations to support their mother's health, however, an employer has the ability to set the location of work and the agency provided evidence that the arrangement cannot be supported further.
The MPC recommended that the agency confirm the decision to decline to extend the employee's flexible work arrangement beyond 12 months.