1. Those clients who have opted into telehealth have choice and control to remain with their treating clinician for continuity of care.

1. The Applicant may not have the most suitable skill set based on the clients presenting issue

1. The Applicant may not be suitable to work with a client due to identified countertransference issues."

(Other than for redacting the name of the Respondent, reproduced verbatim. Emphasis in italics added.)

• [51] The Applicant did not lead evidence to dispute that of the Director. Her only response to par 7.3.10 of the Director's Statement was to produce a copy of a "Support and Recommendations Paper" from the NSW and ACT Primary Health Networks titled "Incorporating telehealth into the future of Australian Primary Healthcare".[24] The paper is dated May 2020. The Applicant stated that it "has provided strong support for telehealth".[25] Be that as it may, there was no evidence that there was or is a demand for telehealth services in the Respondent's business beyond that stated by the Director.

• [52] The Director's evidence was also not materially shaken in cross-examination. To the contrary, her evidence under cross-examination bolstered her written evidence. She referred to graphs she had prepared recording the telehealth sessions conducted by the Respondent's contractors in the first quarter of 2025.[26] She stated that of that work, only 1.38 sessions per week on average were "viable clients who could potentially be seen by [the Applicant]".[27]

• [53] The Director gave the following further evidence under cross-examination:[28]

"During the triage process, you give people an opportunity to nominate whether (indistinct) personal telehealth appointments, don't you? ‑Yes. That's correct. And so I guess the people who have currently comprised [the Applicant's] caseload - so they will actually come with that already assessed, so they're triaged by a separate organisation. They're referred to us and it will indicate on thar [sic] referral whether that person will engage in telehealth or if they've elected for face to face, if they've elected to see a male clinician, a female clinician.

Yes? ‑Obviously if they want a male clinician in person, we can't provide that, so we would have to decline that referral, but in terms of - if we were being directly contacted, our triage process; the first question is, you know, 'Are you hoping to see someone via telehealth [or] in person', and overwhelmingly, people want to see clinicians in person.

But there is some demand for telehealth appointments, isn't there? ‑Yes, there is some demand, but it's underwhelming.

And that process that you described before, how - what's the organisation that provides that referral process to you? Is it done through State health? ‑So it's through an organisation called Neami.

Which stands for? ‑They don't know either, so apparently, they named themselves a long time ago and forgot what the acronym is, but ‑ ‑ ‑

And they're a referral service for, I assume primary healthcare and other sorts of therapeutic professions to refer to other clinicians, is that correct? ‑Yes. So they're what we call a navigator service. So they're a point of contact for GPs, consumers, health professionals, family friends and their job is to navigate consumers to services.

And so if you approached Neami and said, 'We've had [an] employee who mainly is to work remotely for certain reasons and we have more capacity for telehealth appointments, could you please send us more telehealth appointments', why wouldn't they do that? ‑Because they're experiencing the same thing, which is the demand is for in person services. So they've got access to any number of telehealth services, but the issue is that we've got large numbers of people who are wanting to access face to face services."

• [54] Later in the cross-examination, the Director gave the following evidence:[29]

"You mentioned clients who would be happy to have telehealth appointments notwithstanding that they had been triaged to in-person appointments? ‑No. That that [sic] isn't our experience."

• [55] In her written submissions in reply, the Applicant contended that "[t]here is plainly some level of demand for telehealth"[30] and that "[m]erely that previous demand for telehealth may have been low says little about future demand".[31] She accepted that clients may elect which clinicians they wish to see, but rejected the Respondent's submissions as to potential limitations caused by her skillset or countertransference issues as "wholly speculative".[32]

• [56] There appeared to be some movement in the Applicant's position, when she submitted at the hearing:[33]

"There is no reason why [the Applicant] if she's qualified and has the skills to see a particular patient shouldn't have that patient triaged to her as opposed to some other clinician."

• [57] However, in other oral submissions at the hearing, the Applicant contended:[34]

"Demand is a little more complex. It seems that there is, without putting too fine a point on it, much less demand for Telehealth consults than in person consults, but there does seem to be some demand. In fact the respondent...contracts with four contractors, some more, some less, for only providing Telehealth consults, and you will see in part 7.3.10(c), which is on page 19 of the submissions part of exhibit 2, that Telehealth sessions accounted for 12.43 per cent of all sessions [the Respondent] conducted in the 2024 financial year, and that hybrid consultations, being a combination of face to face and Telehealth accounted for 7.6 per cent. So there is some demand.

In [the Applicant's] submission, in my submission, that 20 per cent of Telehealth and hybrid consultation process represents a sufficient demand for her to be engaged in at least a substantial amount of her 0.6 full-time equivalent work."

• [58] Those submissions are premised on all available telehealth work being referred to the Applicant. That does not take into account the evidence that the Applicant may not have the skillset or expertise to deal with all of the presenting problems, which the Applicant appeared to concede. It is not enough for the Applicant to dismiss the Respondent's concerns as speculative; that was the Director's uncontroverted evidence.

• [59] Further, the "hybrid" work involves a clinician conducting both face-to-face and telehealth consultations. Even assuming that the Applicant was qualified to deal with a particular client, I am not persuaded that it would be appropriate for that client to be required to meet with the Applicant for telehealth consultations in place of their regular clinician.

• [60] Rather, I accept the following oral submissions of the Respondent:[35]

"Removing telehealth clients from other personnel and allocating them to [the Applicant] simply isn't an option in the context of mental health care. Our clinicians work really hard to build trusting therapeutic relationships with our clients and we try to maintain that continuity of care. There are limitations in terms of the presenting issues through telehealth and what [the Applicant] would be fit to deliver, and I'm thinking particularly in relation to our demand for relationship therapy, which comprises approximately half of our sessions. This would likely result in a negative impact to our services delivered."

• [61] But aside from these matters, the Applicant's case did not grapple with the totality of the evidence as to the lack of demand for telehealth services. It is not to the point that there is "some demand" for such services. The question is whether there is sufficient demand for that work to support the Applicant working remotely. On the evidence, the answer to that question is no. The Director's largely uncontroverted evidence makes it clear that there is insufficient demand for telehealth services in the Respondent's business to provide the approximately 18 sessions that would be required to meet the expectations of the Applicant's position.

• [62] For these reasons, I am satisfied that at the time the Respondent refused the Applicant's request, there was insufficient demand for telehealth services to support the Applicant performing her duties remotely. The Applicant's submission that merely because previous demand for telehealth may have been low "says little about future demand" is, on the evidence and to adopt the Applicant's words, wholly speculative.

What other work is available for the Applicant to perform?

• [63] The question which next arises is, in the absence of sufficient telehealth consultations, what work would the Applicant perform? This is a question that was put to the Applicant in cross-examination. She stated that she would "complete paperwork...complete my registration".[36] She also had this exchange with the Director: [37]

"That is my conclusion that there is no work. So what we're now looking at is how can your wage being supported by the work that you're proposing? ‑Well, I told you I was willing to invest in the business. There's no reason that - you know, there are primary health networks here in New South Wales as well and there's no reason why it's not possible to tap into other avenues to source that work to provide to me."

• [64] In response to a question from me, the Applicant stated:[38]

"I'm saying that if [the Director] makes the decision or comes to some conclusion that there is no work for me, I can't control it. I'm ready. I'm willing to work."

• [65] The Applicant's evidence created the clear impression that, to her mind, it was enough that she was ready and willing to work. After that, it was up to the Respondent to do what was necessary to make the proposed new arrangements work. If the work is currently not there to be done, the Respondent must somehow source it and provide it to her. It is difficult to see how such a stance would allow for the Respondent to refuse her request on any grounds, let alone reasonable business grounds.

• [66] In any event, the Applicant led no evidence as to the "other avenues" that the Respondent could "tap" to source work for her. There is only an oblique reference in the Applicant's Statement to having "generated further discussion with the Respondent by providing alternative options as I develop knowledge of the local area demographics and the NSW health system and legislation".[39]

• [67] In her statement, the Director addressed potential sources of work that the Applicant had proposed (but which did not form part of the Applicant's evidence). The Director explained why those avenues were not viable sources of work. That evidence was not challenged.

• [68] I am also mindful that the Respondent is a small business, based in Darwin. I am not persuaded that it can, or should be required to, obtain work for the Applicant in regional New South Wales.

• [69] For these reasons, there is some force to the Respondent's submission that the Applicant is not merely requesting flexible work arrangements; she is asking to be appointed to a fundamentally different position to that in which she is employed.

• [70] One of the reasons that the Respondent gave for refusing the Applicant's request for flexible work arrangements, as set out in its letter to the Applicant of 27 September 2024, was that it "would place an unsustainable financial burden on the business, which would require employing a replacement in person practitioner". In her statement, the Director stated that:[40]

1. In order to avoid adverse impacts on customer service, the Applicant would need to be replaced with a clinician able to provide face-to-face services in Darwin. The projected costs for recruiting a replacement are between $7,722 and $12,870.

1. There would be a significant loss in productivity and cost to the business, as the Respondent would be paying the Applicant to complete non-revenue producing tasks. This cost would be over and above the remuneration that would have to be paid to the Applicant's replacement in Darwin.

• [71] In its oral submissions at the hearing, the Respondent contended:[41]

"So in the absence of remote telehealth work, the applicant has requested to be paid to perform non-revenue producing tasks. We don't exist on grants or lump sums of money. We earn revenue one session at a time. So to pay an employee and to not be able to have that wage offset against any revenue will simply cripple the business. So even based on the figures that we've discussed today, with on-costs, the total wage costs would be 50 per cent of revenue, so that would be relying on the applicant bringing revenue in. Service industries would normally work off percentages of 15 to 30 per cent labour costs. So it just leaves very little in the way of room for operational costs and the costs of running the business."

• [72] The Respondent further submitted that "the financial and the demand constraints that we face with a 100 per cent remote work role on a permanent part-time basis are simply insurmountable".[42]

• [73] The Applicant submitted, and I accept, that the Respondent did not produce any financial evidence to substantiate its contentions. It is not possible for me to draw any firm conclusions as to the precise quantum of the financial impact on the Respondent's business of accommodating the Applicant's request. I certainly cannot conclude that the arrangements would "cripple the business" or be "insurmountable".

• [74] At the same time, it is relevant to consider "the nature and size of the enterprise carried on by the employer".[43] The Respondent is a small business. Were it to have accommodated the Applicant's request, it would be required to pay the Applicant a salary with no certainty as to what, if any, revenue she would generate. At the same time, it would be required to recruit and pay another clinician to work in Darwin. While it is not possible for me to quantify precisely the scale of that cost to the business, or the impact that it would have on the Respondent's ongoing viability, I can readily accept that agreeing to the proposed changes to work arrangements would have had a more than negligible negative impact on the Respondent's financial position.

Regulatory limitations on the Applicant's ability to work remotely

• [75] The Director gave evidence that the Applicant "is a provisionally registered psychologist with the Australian Health Practitioner Regulation Agency (AHPRA) and is required to participate in a supervised practice program (approved by the Psychology Board) as a condition of provisional registration".[44] She stated that the Applicant does not have approval to work independently or in a remote work arrangement. The Applicant would need "formal written approval from the Psychology Board to vary their work role, which they have not provided".[45]

• [76] There was some focus on these matters in the parties' evidence and at the hearing. The Applicant gave evidence to the effect that the only impediment to the Psychology Board approving her remote work arrangement was the Respondent's refusal of her flexible work arrangement request. She stated that the College of Professional Psychology had indicated to her that it was in support of the arrangement and that remote supervision was already in place. She stated that it is for her workplace supervisor or line manager to apply to Psychology Board for the necessary approval, not her.

• [77] The Director accepted under cross-examination that the College and AHPRA have permitted the Applicant to be supervised remotely. She questioned, however, whether the approval of the Psychology Board to a remote work arrangement would be obtained, due to her concerns as to the Applicant's ability to work remotely. Those concerns were said to arise from two sources. First, issues with the Applicant's professional practice which were identified after the Applicant left Darwin. Second, disparaging and highly critical comments in material the Applicant filed in these proceedings. The Director stated that she had lost trust and confidence in the Applicant.

• [78] I am not satisfied that these matters are relevant for present purposes. There is nothing to suggest that regulatory restraints formed part of the Respondent's decision to refuse the Applicant's request on 27 September 2024. Nor is there any evidence that at that time the Respondent had any concerns with the Applicant's performance or conduct. Indeed, the Director appeared to accept that her concerns regarding the "trust and confidence" that she could repose in the Applicant had only arisen in the course of these proceedings. To that extent, these matters cannot be seen as forming part of the Respondent's reasonable business grounds as at the date it made its decision.

• [79] The Applicant has experienced family and domestic violence. Her description of the events that led to her leaving Darwin suddenly with her child are disturbing. She should never have been put in the position she was.
• [80] It follows that the issue before me is not whether the Applicant was entitled to request flexible work arrangements; she clearly was. It is also not whether the Applicant is entitled to feel aggrieved that the Respondent refused her request; she is.

• [81] But that is not to say that the Respondent acted inappropriately. It was not obliged to accommodate the Applicant's request, as the terms and tenor of some of the Applicant's evidence suggests. The Respondent was entitled to refuse the request if the requirements of section 65A(3) were met. The only controversy between the parties was whether the requirement that the Respondent have reasonable business grounds for refusing the request was met.

• [82] And I am satisfied that it was, in two respects. First, there was inadequate demand for the telehealth services that the Applicant proposed that she would provide remotely. Any other work that the Applicant suggested she perform was not revenue-generating. This was a fundamental change in the nature of the employment given that the Applicant was employed by the Respondent to generate revenue. As I have already observed, the effect of the request was not so much a change to working arrangements, but a change to the Applicant's position. Second, the proposed new arrangements would have a negative on the Respondent's financial position. I am satisfied that this impact would have been more than a notional one.

• [83] To make the order the Applicant seeks would be tantamount to a finding that the Respondent ought not to have refused her request, despite it being entitled under section 65A(3) to do so. That would be inconsistent with the statutory scheme. It would not achieve fairness between the parties.

• [84] I decline to make the order the Applicant seeks. She did not seek any other order. The only appropriate order available to me is under section 65C(1)(b)(i).

• [85] In accordance with section 65C(1)(b)(i), I order that the grounds on which the Respondent refused the Applicant's request be taken to have been reasonable business grounds.

[1] I have not identified either party in this decision. At the hearing, the Applicant requested orders under section 594(1) of the Fair Work Act 2009 preventing the publication of any information that would identify either the Applicant or the Respondent as being a party to this proceeding. The Respondent did not object to such orders being made. Given the context which gave rise to the dispute between the parties, I determined to make, and did make, orders that:

a) the publication and disclosure of any information which identifies the applicant or respondent as being a party to this proceeding, including the publication of documents or evidence lodged in the Commission, and any information in those documents, is limited to the parties, their legal advisors, and any treating health professional; and

b) the applicant, respondent, and any person, business or other thing that could identify the applicant or respondent in any publication of or concerning this proceeding is to be referred to by pseudonym.

[2] Respondent's Bundle of Documents, Attachment 7

[3] Respondent's Bundle of Documents, Attachment 8

[4] Respondent's Bundle of Documents, Attachment 9

[5] Respondent's Bundle of Documents, Attachment 12

[6] Respondent's Bundle of Documents, Attachment 15

[7] All references in this decision to legislative provisions are to provisions of the Fair Work Act 2009

[8] Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209 at [21]

[9] See Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209 at [22]- [25]

[10] Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWCFB 82 at [39]

[12] The Applicant did not suggest orders that might be made in the alternative which had been mooted in her filed material. As a result, it is not necessary that such alternatives be traversed.

[13] See Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWCFB 473 at [34], although I query whether the observations of the Full Bench in that passage are consistent with the analysis of the Full Bench in Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWCFB 82, in particular at [39] and [50]. Given the findings I have made, I do not need to explore those authorities.

[14] At the hearing, the Director's Statement and the 40 attachments were referred to as the "Respondent's Bundle of Documents"

[15] The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police [2018] FWC 5695 at [45]; Fyfe v Ambulance Victoria (2023) 321 IR 260; [2023] FWC 49 at [45]

[16] Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWC 1845, quoted without criticism by the Full Bench in Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWCFB 473 at [16]

[17] Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council [2013] FWC 5 at [15], quoted with approval in Fyfe v Ambulance Victoria (2023) 321 IR 260; [2023] FWC 49 at [85]

[18] Fyfe v Ambulance Victoria (2023) 321 IR 260; [2023] FWC 49 at [49] and [88], quoting Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council [2013] FWC 5 at, respectively, [20] and [16]

[19] Fyfe v Ambulance Victoria (2023) 321 IR 260; [2023] FWC 49 at [51], cf. Police Federation of Australia (Vic Police Branch) v Chief Commissioner of Police [2022] FWC 2223 at [74]

[21] Respondent's Bundle of Documents, Attachment 7

[22] See Transcript, 28 January 2025, PN142-PN144

[24] Applicant's Statement, Annexure 12

[26] Respondent's Bundle of Documents, Attachment 36

[27] Transcript, 28 January 2025, PN260

[28] Transcript, 28 January 2025, PN236-PN242

[29] Transcript, 28 January 2025, PN266

[33] Transcript, 28 January 2025, PN303

[34] Transcript, 28 January 2025, PN297-PN298

[35] Transcript, 28 January 2025, PN339

[41] Transcript, 28 January 2025, PN333

[42] Transcript, 28 January 2025, PN340

[43] Legislative note to section 65A(5)

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