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Norman Waterhouse

How flexible must flexible working arrangements be?

Lockdowns and restrictions have forced a number of Australian employers to adapt on short notice and to rethink their business structure, including ways in which daily operations can be sustained whilst staff work remotely. Even with a return to the ‘new normal’, many employers have embraced flexible working arrangements for their staff with the expectation that these types of arrangements will be here to stay.

With the demand for flexible work increasing, the line between offering flexibility to employees, and ensuring that the inherent requirements of the employment are being fulfilled can often be blurred. This issue was considered in the recent decision of Dee Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994 in the Fair Work Commission (the Commission).


Ms Sinclair was employed at Sunwise Constructions Pty Ltd (Sunwise Constructions) to undertake administrative and receptionist duties on a full-time basis. She was acting as the first point of contact for visitors to the site. Sunwise Constructions has less than 15 employees and is therefore a small business employer, pursuant to the Fair Work Act 2009 (Cth) (the FW Act).

Ms Sinclair’s position was full-time with rostered hours of 8:00am to 4:00pm. However, in reality Ms Sinclair was unable to work these hours for much of her employment. The reason being that she was responsible for the care of her grandson who had special needs. There was limited support available to her to meet her caretaker responsibilities and as such it made it difficult for her to also manage her employment responsibilities with Sunwise Constructions.

Across the course of Ms Sinclair’s employment, Sunwise Constructions had been flexible and considerate of Ms Sinclair’s situation, allowing her time off, altering work hours, allowing children in the office and phone calls to be forwarded through to her mobile, enabling her to work remotely and care for her grandson at the same time.

In 2020, Sunwise Constructions realised the financial strain the business was under and the importance to ensure the company was operating efficiently. Sunwise Constructions determined that Ms Sinclair’s irregular attendance and working hours were no longer sustainable and were having a negative impact on other workers as tasks were not being completed in a reasonable timeframe, an issue which could no longer be left unaddressed.

Sunwise Constructions met with Ms Sinclair and explained the way in which she was filling the role was no longer sustainable for the business and if she was unable to commit to being present at work during full-time business hours, they would need to find someone who could meet those responsibilities. Ms Sinclair committed to working those hours. However, in discussions which followed, Ms Sinclair advised that she was only available to work a three-week rolling schedule with an average of under 30 hours per week. As such, Sunwise Constructions made the decision to terminate Ms Sinclair’s employment due to her not being able to commit to performing the required full-time hours on site.

Ms Sinclair subsequently filed an unfair dismissal claim in the Commission, asserting that there was no valid reason for the termination of her employment. Sunwise Constructions submitted that the decision to terminate Ms Sinclair’s employment was a result of her being unable to meet the obligations of her employment contract.


The Commission found that the dismissal was consistent with the Small Business Fair Dismissal Code, in particular finding that procedural fairness had been offered to Ms Sinclair throughout the decision-making process, and that Sunwise Constructions had acted entirely reasonably in reaching the decision to terminate her employment. The Commission found that the requirement for Ms Sinclair to work full-time hours on site during business hours was a valid reason for termination, based on her capacity to do the job.

The Commission stated:

“The situation was a very difficult one for all involved. Ms Sinclair was trying very hard to balance and meet the competing demands on her time. [Sunwise Constructions] has been exceptionally flexible and considerate of Ms Sinclair’s situation, but there came a point where for the sake of the business and everyone’s employment, the situation became untenable.”

Take Home Messages

This case demonstrates that not all flexible working arrangements will be suitable to the operations of a business and termination may be lawful in some circumstances. Employers must consider how best to balance the personal circumstances of their employees with the overall priority to ensure business productivity.

Employers must always consider if the inherent requirements of the employment contract can be fulfilled under an altered working arrangement, taking into account the nature of their operations and size of their workforce.

Section 65 of the FW Act sets out the specific circumstances where eligible employees may request a flexible working arrangement. Whilst employers may have obligations to make reasonable adjustments to an employee’s position when requested, not all roles are suited to flexible working arrangements and refusals can be lawfully made in certain circumstances.

For more information in relation to this article please contact Sathish Dasan on +61 8 8210 1253 or, Ganesh Krishnan on +61 8217 1395 or or Anastasia Gravas on +61 8 8217 1331 or


1 November 2021


Business, Government

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