The Case

Sinclair v Sunwise Constructions Pty Ltd (2021)

Sunwise Constructions Pty Ltd employed Ms Sinclair as a full-time office administrator.

Sunrise Constructions was a small business employer for the purposes of the Fair Work Act 2009 (Cth) (FW Act), meaning it had fewer than 15 employees.

Ms Sinclair was required to work between 8am and 4pm from Monday to Friday. Her work included being the first point of contact for visitors, receiving goods, taking calls and performing other administrative tasks.

Ms Sinclair had family responsibilities – she was required to care for her grandson who had special needs. Sunrise Constructions tried to accommodate Ms Sinclair’s caring responsibilities by:

• allowing her to have time off;
• allowing the child in the office;
• altering her work hours;
• implementing call forwarding to her mobile to assist in working from home; and
• allowing absences at short notice to enable her to attend appointments.

Given a financially difficult year in 2020, Sunrise Constructions undertook a review of its business in 2021. It calculated that in the previous 6 months, Ms Sinclair had worked an average of 30 hours per week. Sunrise Constructions decided it needed someone in the office full-time and advised Ms Sinclair her employment may be terminated if she could not work full-time hours. Ms Sinclair agreed to commit to full-time employment, but later requested to change her hours of work to enable her to take her grandson to support services.

After some discussion, Sunrise Constructions suggested Ms Sinclair revert to part-time. Ms Sinclair refused.

Ms Sinclair then requested 4–6 months of leave and to take a week of annual leave due to stress and anxiety. Sunrise Constructions refused given the late notice provided.

Ms Sinclair then provided a medical certificate to support her need for leave. Sunrise Constructions informed Ms Sinclair that it could not keep her position open for 4–6 months and terminated her employment.

Ms Sinclair filed an application for unfair dismissal in the Fair Work Commission (FWC), alleging that:

• she was dismissed for requesting time off to fulfil her carer’s responsibilities;
• she was dismissed for taking personal leave;
• Sunrise Constructions could not unreasonably refuse to accommodate her responsibilities as a carer, pursuant to the Equal Opportunity Act 2010 (Vic);
• she had received no warning; and
• her dismissal was not consistent with the Small Business Fair Dismissal Code (the Code).

Sunrise Constructions defended the claim, arguing that the dismissal was due to Ms Sinclair’s inability to perform her position on a full-time basis.

The Verdict

The FWC held:

• Ms Sinclair’s dismissal was consistent with the Code;
• Ms Sinclair did receive a warning as she was put on notice in April 2021 that her employment was at risk of termination unless she was able to work full-time hours;
• Ms Sinclair was given time to commit to full-time hours and given the alternative of a part-time work arrangement; and
• the reason for the termination of employment was Ms Sinclair’s inability to work full-time hours, not because she sought to have time off due to her carer’s responsibilities or to take personal leave.

The Lessons

Section 65 of the FW Act enables some employees to request flexible work arrangements.

Not all flexible work arrangements will be suitable to the operations of an employer, however an employee’s request must be carefully considered.

Both the interests of the employee and the employer need to be balanced to see what is possible. An employer must consider whether the employee can perform the inherent requirements of their job under the altered work arrangement.

If flexible work arrangements are agreed upon, they should:

• be set out in writing;
• provide clear expectations for the employee’s work; and
• include a trial period. Regular reviews of the flexible arrangement can also be helpful.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.