Fair Work Act 2009

s.65B - Application for a dispute about requests for flexible work arrangements

Application under s 65B - application dismissed

• [1] Andrew Sampsonidis (applicant) has made an application under s 65B of the Fair Work Act 2009 (Act) by which he seeks orders from the Commission that would require his employer, Make It Mine Finance Pty Ltd (respondent), to allow him to work from home full-time, as he has done since the onset of the COVID-19 pandemic. The orders are resisted by the respondent, which requires him to work at least some days in its office in Melbourne. The circumstances relied on by the applicant are those in ss 65(1A)(a) and (c): that he is the parent of a young child, whom he drives to daycare if his partner is unable to do so; and because he has a disability, namely post-traumatic stress disorder (PTSD) from a serious car accident in 2007, which is said to cause him flashbacks when travelling in a car, particularly if he is not the driver, and when he is on public transport, including on trains.

• [2] It is clear that the applicant is a parent of a child who is of school age or younger. I also accept, with some hesitation, given the limited current medical evidence, that the applicant has a disability that is connected to a diagnosis of PTSD in 2007. However, I find that there is no logical nexus between the circumstances on which the applicant relies and the working arrangement that he seeks, which is to work from home full-time. The evidence demonstrates that the applicant's need to care for his child is occasional, not constant. It is not an impediment to working in the office some of the time. Further, I do not accept that the applicant's disability renders him unable to drive himself to the city, or to take the train to the city, without suffering serious adverse psychological consequences.

• [3] First, the applicant's correspondence with his manager in October 2024 about the respondent's requirement that employees return to the office makes no mention of his disability as a circumstance that would prevent him from travelling to the city. On 25 October 2024, the applicant told his manager, Steve Uren, that a return to the office was a drastic change and that he needed a few weeks to make arrangements, as he had a child in daycare whom he picks up and cares for. On 28 October 2024, the applicant told Mr Uren that 'with the increased travel time, expenses, no option of flexibility, or return to office plan this is a huge change and greatly impacts my home life and family'. It was not until 22 January 2025, when the applicant submitted his request for flexible working arrangements, that he told the respondent that he needed to work from home because of a disability. The applicant said that he did not raise the matter earlier because he was embarrassed. I do not accept this. If travelling to the office was not possible because of his disability, the applicant could have, and in my view would have, explained this to the respondent.

• [4] Secondly, the applicant's evidence that he cannot commute to work by car or train is inconsistent with the request for flexible working arrangements that he made on 22 January 2025. The request did not state or suggest that commuting to work was medically prohibitive. It said that the commute led the applicant to experience uncomfortable symptoms that leave him mentally fatigued. It also said that the applicant was willing to attend the office for special occasions.

• [5] Thirdly, the applicant's evidence that he cannot commute to the office is not reflected in the medical evidence constituted by a note prepared by a Dr Tanase of TST Clinic Telehealth in Sydney dated 20 January 2025, which states, briefly, that the applicant was diagnosed with PTSD in 2007, that since then 'he gets flush backs (sic) every time he is in traffic or on public transport', and that 'not having to go in traffic would be beneficial for his condition'. The doctor's note does not state or suggest that the applicant cannot commute to the city at all. To the extent that the note is concerned about the applicant being in traffic, the applicant could avoid this by going to work early in the morning: the respondent confirmed that it was open to flexible start and finish times. Further, the doctor's note recommends, but does not insist, that the applicant be allowed to work from home. It does not state that he must or should work from home full-time.

• [6] Fourthly, the letter dated 4 March 2025 from the applicant's accredited mental health social worker and family therapist, Rosemary Becker of Mindful Living, states that he experiences flashbacks, anxiety attacks and distressing physical symptoms when he is in a situation that is reminiscent of the initial trauma, and that this most commonly occurs when he is a passenger in a vehicle that he does not control, such as a taxi, bus or train. Why riding on a train should have any association with a car accident was not explained and does not make sense. The letter goes on to say that the applicant experiences fewer symptoms when he is driving his own car, but that he does not feel comfortable driving long distances or in traffic. But discomfort in driving is not prohibitive of driving.

• [7] Fifthly, the applicant said that on 1 November 2024, he drove himself into the city for the first time in 5 years, and on 19 November 2024 he caught the train into the city for the first time in 6 years, both times to go to work, and that on both occasions he experienced the negative symptoms set out in his witness statement. Nothing was said about the previous occasions on which he had travelled to the city. Mr Uren said that he met with the applicant on 1 November 2024, that the applicant did not show any sign of distress, and that the applicant told him that he needed to work from home because of parental responsibilities. The applicant did not say anything about having just had a distressing drive into town. I do not accept that on 1 and 19 November 2024 the applicant experienced the severe symptoms described in his evidence.

• [8] Sixthly, I do not accept the applicant's evidence that he experiences severe adverse symptoms while travelling on a train. This is not a situation that is reminiscent of the trauma in 2007, which was a road traffic accident. Trains do not travel in traffic. The applicant said that he can be 'triggered' by loud noises and crowds. But trains are not particularly noisy and crowds can be avoided by not travelling at peak times. The applicant said that he had been unable to ride on public transport of any kind since 2007. But he also said that he went to America on a holiday in 2019 and then used Ubers to travel around. The applicant's evidence that he cannot take the train is not credible.

• [9] Finally, I accept the evidence of Ms Nash that the applicant is an overcautious driver and that he always travels under the speed limit and avoids traffic. But this does not indicate to me that it would not be reasonably possible for the applicant to drive himself to and from work on some days, particularly at times of the day when the traffic is light, such as in the early morning and early afternoon. Ms Nash also said that the applicant cannot travel far, and that he cannot take a taxi, a bus or even a train because it causes him extreme anxiety. I do not accept this. The applicant caught Ubers after flying to America. And as I have said above, I do not accept that he cannot take the train.

• [10] The medical evidence adduced by the applicant about his disability is thin. Dr Tanase's note refers to the 2007 diagnosis of PTSD and then states briefly what the applicant has relayed about his current symptoms. It is not itself a diagnosis or a re-diagnosis. Further, it simply does not support the applicant's claim that he cannot reasonably be expected to commute to the office at all. Ms Becker, the applicant's mental health social worker, states that the symptoms reported to her by the applicant are consistent with PTSD, but she is not a medical practitioner. In any event, this document falls well short of demonstrating the applicant's need for the working arrangements he seeks. In particular, the applicant's contention in this matter that train travel is not a reasonable option for him is an unusual and counterintuitive one. It is not supported by any convincing medical evidence. The applicant said that he did not have time to submit a report from a psychiatrist. But he did not request a later hearing date to enable him to do this.

• [11] A link between a circumstance in s 65(1A) and the proposed working arrangements is a jurisdictional requirement of an application under s 65B. The Act is very clear that the desired change in working arrangements must be 'because of' the relevant circumstance in s 65(1A) (see s 65(1)(b)), and the request for change must relate to the relevant circumstance (see Quirke v BSR Australia Ltd [2023] FWCFB 209 at [23]). I find that there is no nexus between the circumstances invoked by the applicant and the particular working arrangements he seeks. I find that the applicant does not need to work at home full-time because he is a parent of a young child or because he has a disability.

• [12] The applicant contended that the respondent's response to the request for flexible working arrangements did not meet the requirements of s 65A(3) in various respects and that therefore the request could not have been refused by the employer, with the consequence that the application should be granted. He relied in this regard on the decision of the Full Bench of the Commission in Naden v Catholic Schools Broken Bay Limited [2025] FWCFB 82, which explains what an employer must do in order to satisfy the procedural requirements of the Act in respect of the consideration of and response to a request for flexible working arrangements, as well as the implication of a failure to do so, which is that the worker's request must be granted. But the application fails the anterior requirement that there must be a nexus between the prescribed circumstances and the relevant working arrangements. Any deficiencies in the respondent's response to the request are therefore irrelevant and could not have affected the outcome in this case.

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