Australia: Flexible Workplace Arrangements: What Constitutes Reasonable Efforts?

In December 2005, the full bench of the New South Wales Administrative Decisions Tribunal delivered the decision of Tleyji v The TravelSpirit Group [2005] NSWADT 294. The decision provides a timely reminder to employers of their obligations when responding to issues arising in the workplace concerning carers' responsibilities. Tleyji illustrates some of the common pitfalls that employees face when dealing with requests for flexible workplace arrangements.

Ms Tleyji was a senior travel consultant at the TravelSpirit Group. On return to work after a year of maternity leave, Ms Tleyji alleged that her employer, TravelSpirit, unlawfully discriminated against her in employment on the grounds of carers' responsibility, gender and race.

In relation to carers' responsibilities and gender, Ms Tleyji made the following claims:

• Her conditions of employment had been changed to her detriment. Some of the changes included the narrowing the scope of her duties, the prohibition on staff from taking a Rostered Day Off on a Monday or a Friday, the exclusion of Ms Tleyji from a conference and the creation of a hostile work environment by colleagues on her return to work.
• TravelSpirit refused to allow her to return to work part-time before her scheduled return from maternity leave. A part-time position was advertised on TravelSpirit's website before Ms Tleyji's return to work.
• TravelSpirit refused to allow her to work part-time on her return from maternity leave, and required her to work full-time on her return.

TravelSpirit made some efforts to address Ms Tleyji's request, including offering her two part-time positions in the city office. Ms Tleyji argued however that the roles were inferior to her current role as senior travel consultant as the position was lower paid, involved less skills and was located in the city, which would mean a longer commute.

In relation to race, Ms Tleyji claimed that she had been discriminated against on the basis of race when she was directed by her manager not to speak Arabic at her desk and that any future calls in which she spoke Arabic were to be taken in the upstairs staffroom.

The Tribunal rejected Ms Tleyji's claim that there had been a change in the conditions of her employment on account of gender or carers' responsibilities. The Tribunal held that the changes to employment conditions would have applied to a "senior travel consultant without carers' responsibilities… who had retuned from leave after an extended period" as well as a male travel consultant. Therefore, Ms Tleyji was not treated any differently than a person in either of those comparable categories. The Tribunal also held that TravelSpirit was not obliged to offer Ms Tleyji the part-time position advertised on its website.

However, the Tribunal upheld the claim that TravelSpirit's refusal to allow Ms Tleyji to work part-time on return to work was discriminatory. TravelSpirit had not made "reasonable efforts" to accommodate Ms Tleyji's request for part-time work. Even though TravelSpirit had made some efforts to accommodate Ms Tleyji, the Tribunal found that there was no "real consideration" given to whether Ms Tleyji could perform the work on a part-time basis.

In this regard, the Tribunal noted that while TravelSpirit had given some consideration to allowing Ms Tleyji to work part-time, it had not given full and proper consideration to whether she could perform the role as a senior travel consultant on a part-time basis under the arrangements she had proposed or some modified form of it.

The Tribunal pointed to examples of what TravelSpirit could have done to satisfactorily demonstrate that they had made a "reasonable effort" and had given "real consideration" to Ms Tleyji's request to work part-time. These included:

• asking the current part-time employees whether they would be interested in a full time position, even for a short period (enabling Ms Tleyji to potentially "swap" into a part-time role);
• asking Ms Tleyji whether she might be prepared to work more hours or job share with another employee;
• considering a trial period to put Ms Tleyji's proposal into practice.

Despite this finding, the Tribunal made no order for damages as Ms Tleyji had not sought either economic or non-economic relief in relation to that aspect of her complaint.
The Tribunal upheld the race allegation and awarded Ms Tleyji an amount of $5,000 for non-economic loss.

The carers' responsibility ground was first introduced in 2003 by amending legislation to the NSW anti-discrimination legislation. Two years forward, Tleyji continues to illustrate the importance of making proper assessments in relation to requests for flexible workplace arrangements.

Moreover, while there is no blanket requirement that an employer must provide flexible work arrangements for employees returning from maternity leave, "reasonable efforts" need to be demonstrated.

Cases like Tleyji also demonstrate the importance of properly managing expectations of employees taking a period of maternity leave both before commencing and prior to returning from the leave. It would be prudent for employers to consider strategies to help reintegrate employees into the workplace who have been on leave for an extended period of time. Such initiatives may include:

• towards the end of the leave period, keeping the employee up to date with changes to workplace practices;
• inviting the employee to meet new team members before returning to work;
• maintaining open channels of communication between the employee and management; and
• adopting a consultative approach when dealing with return to work issues that arise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.