September 29, 2023 — 5.05am
I worked in a senior leadership position at a multinational company for several years. I had been with the company for much longer. Because of parental responsibilities, as well as a personal health issue, I asked to begin working part-time. As part of this formal request, I suggested it would be best to work from home to make sure I could do school pick-ups and drop-offs and quickly get back to work. This was agreed to by my manager at that time.
After some time working like this, it became obvious that remote part-time work was the best thing for my family and health. I had a meeting with my manager, where I proposed that I continue in this way: working three days a week, mostly from home, for the foreseeable future while continuing to provide leadership and strategic advice, and encouraging my reports to step up and expand their roles.
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My suggestion was rejected outright. I was threatened with demotion and told my working from home was not looked upon favourably. This was the first time I’d heard any criticism of my changed work situation.
I decided to resign, but I keep wondering if I should pursue a complaint under the Fair Work Act. Is this even an option? Are there other avenues worth pursuing?
Thanks for sharing your story in such detail, and for working with me on a version of the question that would be brief enough for this column. I appreciate your candour.
I spoke about your case with Professor Shae McCrystal, from the University of Sydney, as well as Professor Joellen Munton, from the University of Technology Sydney. They’re both experienced labour law experts.
Before we go on, I should make it clear that neither this column nor the experts are giving specific legal advice on your case. Instead, this response aims to outline some facts, guidelines and principles you might need to think about as you consider what to do next.
Both McCrystal and Munton confirmed that there is a very short time limit if you’re complaining that you’ve been unfairly dismissed from a job to the Fair Work Commission. It’s 21 days from the date of dismissal. But this is unlikely to apply to you.
“In the case of your correspondent, it appears that they chose to resign themselves. So they would need to frame their complaint as one in which the employer took adverse action against them because they were exercising a workplace right, or for a discriminatory reason,” Munton told me.
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It sounds to me like you’ve been treated poorly by your manager. The agreement to a new arrangement followed by a sudden rejection of its terms would have been confusing and dispiriting – perhaps even humiliating. The problem is that the Fair Work Act is not as far-ranging as you might first think. It may be applicable, but only in very specific ways.
“The Fair Work Act does not make provision for individuals to make complaints about their treatment at work. Instead, the act protects certain rights, and provides for the resolution of disputes,” McCrystal explained.
“The National Employment Standards allow for employees to make a request for a change to their working arrangements in certain circumstances. One of those circumstances is where the worker has responsibility for the care of a child who is school age or younger. However, if the worker has resigned from their employment, the flexible work provisions do not apply. They are not designed to be punitive or to redress alleged past wrongs. They address disputes that arise during employment and the future working relationship between the parties.”
So, answering your question about whether pursuing a complaint under the Fair Work Act is even an option – it may be, although your options are limited because of your resignation. And, in any case, it may be very difficult to make a successful claim. It probably goes without saying that any type of legal action might also be expensive.
If you were to consider, say, an anti-discrimination claim, you’d need to get specific legal advice from a lawyer with experience in that field.
I sincerely wish you all the best, no matter what you decide. It sounds from our correspondence like your next employer – an organisation willing to offer you and your family the flexibility you need, I hope – will be lucky to have you.
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