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[2026] FWC 745
General information, not legal advice.
Fair Work Commission
2026-03-16
Original judgment source is linked above.
s.65B - Application for a dispute about requests for flexible work arrangements
AWP Australia Pty Ltd trading as Allianz Partners
Application to deal with a dispute about the right to request for flexible working arrangements
[1] On 1 December 2025, Mr Darren Huxhagen (the Applicant) made an application to the Fair Work Commission under s.65B of the Fair Work Act 2009 (Cth) (the Act) seeking to resolve a dispute about a request for flexible work arrangements with Allianz Assistance (the Respondent).
[2] The Respondent notes an administrative issue concerning its business name and seeks that the Respondent by formally recorded as AWP Australia Pty Ltd trading as Allianz Partners. I am content to exercise power to amend the name of the Respondent to correct this error.
[3] The Commission attempted to resolve the dispute on 22 December 2025 by conference. At the conference the parties agreed to a trial period of half a day per week in office for the Applicant for the duration of one and a half months. A report-back conference was then listed for 11 February 2026.
[4] At the report-back conference on 11 February 2026, the Applicant appeared on his own behalf while Ms Mellissa Lipsys, People and Culture, and Mr Chris Gowers, Operations Manager, appeared on behalf of the Respondent.
[5] The dispute was unable to be resolved at the report-back conference. However, both parties were amenable to the matter being determined on the papers.
[6] At 10:56am on 11 February 2026, directions were issued for both parties to file any further submissions regarding the matter and serve a copy on the other party by no later than 5:00pm Wednesday, 18 February 2026.
[7] The Applicant commenced employment with the Respondent in December 2022.
[8] The Applicant is employed as a Travel Help Desk in the Travel Sale department.
[9] On 28 July 2025, an IME Report was submitted by Dr Christopher Slack, Consultant Psychiatrist. The purpose on the IME Report was to medically evaluate Mr Huxhagen's capacity to work. The Report found that Mr Huxhagen does have attention-deficit disorder and an associated anxiety disorder. While it was noted that this condition will be lifelong, Dr Slack found it was currently being managed well without the use of psychotropic medication.
[10] The IME Report found that Mr Huxhagen was functioning well working 30 hours per week with increased hours working from home. Dr Slack noted:
"his work capacity is still best considered as reduced to this level."
[11] The IME Report recommended continuing the Applicant's current working arrangements, but Dr Slack believed that Mr Huxhagen should be able to attend the office for at least two shift/days per week, although noted that over time Mr Huxhagen's effectiveness in the workplace tends to diminish as a result of his heightened anxiety in the workplace secondary to the effects of his attention-deficit disorder.
[12] The IME Report also found that Mr Huxhagen could work safely from home, with or without restrictions, and that working from home, in any capacity, would not exacerbate his pre-existing medical conditions.
[13] At 4:56 am on 14 October 2025, the Applicant received the following email from Ms Kaela Tusa:
"Following your decision to withdraw your Fair Work application and resubmit a new Work from Home request, we note that the submission period has now passed and we have yet to receive your updated request.
As discussed in previous meetings, and in line with our current workplace arrangements, we are now permitted to ask you to attend the office for a minimum of two days per week. This arrangement will be enforced starting Monday, 21 October 2025.
To support you in this transition, we will allocate a dedicated working space in the office to ensure you have a quiet and productive environment."
[14] Later the same day, the Applicant submitted a flexible working arrangement request (FWA request) to continue to work from home for all his rostered hours ongoing, as the Applicant had been doing since December 2024 under medical advice due to his disability. The Applicant stated the following in his FWA request:
"Working from home is vital and necessary for me to help manage my symptoms of ADHD, social anxiety and depression in a way that makes my working life sustainable.
The confidence to know I can control my environment and social interactions when I am symptomatic helps keep me focused, and helps avoid unplanned absences due to pressures inherent in the office environment. These include bright lights which cause me migraines; loud and distracting noises, including background chatter of the call centre; unnecessary social interactions, particularly on busy days, with lots of staff members present (this is particularly problematic on Monday to Thursday when the office is very full).
On these busy office days, I currently have my work-from-home shifts arranged with a one-hour unpaid lunch break, as advised by HR for the purpose of swimming and running at home.
This allows me the required amount of time to focus on an exercise routine that assists with the dopamine crash I experience in the afternoons associated with my deficit disorder and allows me to be more productive.
I have this equipment in my place of residence, and would not be able to accomplish this from the office, even with an hour lunch break, as I live a 20-minute walk from the office."
[15] On 31 October 2025, the Applicant was contacted through Microsoft Teams by Ms Tulsa and Ms Lipsys requesting that he attend a conference call.
[16] The Applicant contends that during the conference call Ms Tulsa and Ms Lipsys denied his FWA request and discussed their expectations for a return-to-work plan. The Applicant states that he felt the nature of the conversation was dismissive and heated before he eventually felt that he was being heard. Ms Lipsys and Ms Tulsa advised the Applicant the outcome information would be sent via email.
[17] The Respondent asserts that during this discussion the Applicant initially agreed with the return-to-work plan but later expressed that he wished to consult his GP.
[18] On 3 November 2025, Ms Lipsys sent a letter to the Applicant stating that as discussed on Friday, 31 October 2025, the Respondent was unfortunately unable to approve the request for operational reasons. The letter further stated that an arrangement has been discussed to assist the Applicant with the return-to-work goal of working in the office two days per week. The Respondent was able to offer the Applicant the following alternative arrangement effective 11 November 2025:
[19] On 10 November 2025, the Applicant emailed the Respondent stating the following:
"As per current medical advice due to disability I am still not in a position to actively accept the proposed return to office plan and attend the office at this time. However, I have made arrangements to discuss further with my GP and Psychologist later this month the potential for medical clearance that may allow me to attend one half day per week on the quieter days (Friday or Saturday) on a trial basis. Assuming the in office environment is not a toxic experience and does not distract or diminish my optimum work performance (as per Medical advice from me GP and the IME Doctor's concerns within his detailed report).
My response to the first two points has been entirely misconstrued. I am confident with my ongoing discipline and work practice, that I can actively continue to grow and improve my performance at Allianz as I have already demonstrated consistently throughout 2025. While still Working from Home under professional medical advice. While furthermore continuing to meet the aforementioned mandatory Operational Requirements to attend Team Meetings, MPR's and Coaching/Training sessions remotely as I clearly have throughout the year."
[20] On 18 November and 21 November 2025, the Applicant was scheduled for a coaching session but reported unfit for work for the morning shift. The Respondent requested a medical certificate which was provided on 26 November 2025.
[21] On 25 November 2025, after a team meeting, the Applicant reported unfit for work prior to his rescheduled coaching session.
[22] On 1 December 2025, the Applicant lodged a Form F10C application with the Fair Work Commission.
[23] On 3 December 2025, the Applicant took an hour-long phone call to 1pm and then went on a lunch break. The Applicant's Team Leader reached out to Mr Huxhagen through Microsoft Teams to advise him that he had a coaching session scheduled for 1pm. The Applicant returned from lunch and responded to the Team Leader's message asking, "Coaching now?'.
[24] After this message to the Team Leader the Applicant received a call. Following this phone call, the Applicant messaged the Team Leader via Microsoft Teams to notify the Team Leader that he was unwell and needed to clock out for the rest of the day. The Respondent submits that the Applicant was aware of the 1pm coaching session as he had been notified by the Team Leader through both a Microsoft Teams invite and email.
[25] The Respondent submits that the Applicant provided a medical certificate inclusive of 28 November to 3 December 2025 but still worked on 29 November and 2 December despite being declared medically unfit to work.
[26] On 11 December 2025, a Notice of Listing was sent to the Applicant and Ms Lipsys.
[27] On 17 December 2025, the Applicant was scheduled for an MPR session at 3:15pm.
[28] At 11:57am on 17 December 2025, the Applicant was reminded of the scheduled session via Microsoft Teams.
[29] At 1:47pm on 17 December 2025, the Applicant sent an email to the Respondent stating:
"Hi Jayden, with the upcoming Fair Work Conference on Monday in relation to my disability, and recent personal stress due to forced work absences at Christmas Time by Allianz through no fault of my own; as it is medically advised I am supported to Work From Home as noted throughout the year, I would like to ask for a small amount of consideration in rescheduling my MPR until next week (after the Fair Work Conference has been attended on Monday)."
[30] At 2:42pm on 17 December 2025, Mr Fielding-Smith emailed the Applicant requesting that he ensure his attendance for his MPR scheduled for that afternoon in line with guidance provided to the Applicant by Mr Chris Gowers on 10 December 2025. Mr Fielding-Smith expressed that these sessions were essential to the Applicant's performance and contributed to the performance of the Respondent's teams, its various departments, and its broader functions.
[31] At 3:14pm on 17 December 2025, the Applicant copied my chambers in on an email to Mr Fielding-Smith where he expressed that he felt pressured and intimidated due to the lack of consideration from the Respondent towards himself and his disability. The Applicant stated that he would be logging out for the day for self-care at 3pm and would not be attending any meetings until after the Conference scheduled for 22 December 2025 as he did not feel comfortable discussing the matter further. The Applicant stated he would supply a medical certificate as outlined by the new Operations Manager, Mr Gowers.
[32] The Respondent states that the Applicant has still not provided a medical certification for the 12, 16 or 17 December 2025.
[33] The Applicant's MPR was rescheduled for 23 December 2025.
[34] At the conference held on 22 December 2025, the Parties agreed to a trial period where the Applicant would spend half a day per week in the office until the report back conference listed on 11 February 2025.
[35] On 23 December 2025, the Applicant sent an email to my chambers and the Respondent noting that he had booked an appointment with Dr Jennifer Garlick, for 12 January 2026, with the aim of receiving medical clearance to attend a half-day in office trial on Fridays, from 16 January to 11 February 2026. The Applicant requested that the Respondent provide a specific outline of the accommodations and considerations that would be made regarding his disability during these in-office shifts to provide to Dr Garlick.
[36] The Applicant submits that he never received this outline of accommodations from the Respondent, nor was the request acknowledged prior to his doctor's appointment, meaning that the accommodations had to be discussed theoretically.
[37] The Applicant further submits that the reply he eventually received was sent on 16 January 2026, his first in-office day, outside of his work hours, and to an email address that can only be accessed on a work computer. The Applicant notes that this meant he was walking into a situation where he did not know if he would be accommodated.
[38] At 3:12pm on 30 December 2025, Mr Fielding-Smith emailed the Applicant to confirm whether he had obtained a medical certificate from his General Practitioner regarding the half day in office. Mr Fielding-Smith then went on to remind the Applicant that his first half day in office was to be 2 January 2026.
[39] At 5:33pm on 30 December 2025, the Applicant replied to Mr Fielding-Smith's email stating the following:
"I'm not sure where this information is coming from? But it's not at all accurate.
The correspondence in relation to this trial consideration; as outlined by Commissioner Simpson means that I require an outstanding response from HR before the 12th Of Jan, outlining what accommodations will be made from Allianz for my disability to ably attend, this potential trial on Friday the 16th. This is a Medical Requirement of my disability, and I will need to supply the proposed accommodations to my Doctor at the next available appointment for consideration, which is booked on the 12th.
I understand that you are out of the loop on this Jayden, and I am happy to loop you in if you would like me to forward this correspondence, being that HR have not accurately communicated the required information."
[40] At 1:36pm on 31 December 2025, Mr Fielding-Smith replied to the Applicant's email stating:
"Ok, I will need to circle back with HR and so due to turn around time, no need to come into the office this Friday 2/1/2026. If I can still ask that you focus on gathering that medical certificate as this seems to have been a direction from the hearing that this Friday half day arrangement will remain in place until the matter is relisted for reporting back to the Commission on progress. That way we can aim for the 12th of January to work half day in office.
[41] At 4:19pm the Applicant sent the following reply:
"Yeah that is the purpose of the Medical Appointment on the 12th, outcome depending on the outstanding response due from HR. The re-listing date is Feb 11th for the Commissioner to review in regards to the ½ day Friday trial, in which if ample and suitable accommodations are made and Medically signed off on, would commence on Friday the 16th."
[42] On 12 January 2026, the Applicant met with Dr Garlick who subsequently provided a letter to the Respondent that stated the opinion that Mr Huxhagen would be able to produce his best work by continuing to work from home. But if the trial period was deemed necessary, several accommodations could be made to increase the chances of success:
[43] The Applicant requested that the Respondent advise whether the accommodations outlined by Dr Garlick could be met prior to 16 January 2026.
[44] On 12 January 2026, Ms Lipsys replied with the following:
"I hope this message finds you well. I would like to remind you of our communications on 31 October 2025, via phone conference, and 3 November 2025, through the attached letter, which confirmed our discussion on 31 October 2025. These communications outlined potential accommodations for your return to the office. Please refer to the final paragraph of the attached letter for specific details.
We have been open to considering your input throughout this process. However, we do not recall any advisement that the company is required to provide additional guidance on this matter. It was agreed that you would consult with your doctor, and I am pleased to confirm that we have received this advice this evening. Thank you for providing this information.
We will review the details and schedule a meeting with you shortly to prepare for your office attendance on Friday, 16 January 2026."
[45] On 15 January 2026, Ms Lipsys sent a further email stating:
"Thank you for sharing your accommodation requirements to facilitate your attendance at the office.
I am pleased to confirm that we are able to meet these accommodations. We can discuss the practical implementation during an in-person meeting tomorrow from 12:00 PM to 1:00 PM at the office."
[46] On 16 January 2026, the Applicant attended the office as agreed. The Applicant submits that he suffered from some extreme symptoms of executive dysfunction while preparing for this shift and arrived 20 minutes late.
[47] The Applicant attended a meeting upon his arrival at the office with Mr Fielding-Smith, Ms Lipsys, and Mr Gowers in attendance. The Applicant notes that he felt intimidated and overwhelmed due to the unscheduled nature of the meeting. The Applicant submits that during this meeting some accommodations were discussed and there was agreement between the parties to implement some small accommodations to support the Applicant's work practice and wellbeing, such as, teams and email notification pings, not scheduling last minute changes, or needing to clarify items on his roster such as breaks, meetings etc. The Applicant felt that with his disability these accommodations would be necessary for him to stay focussed on his job role moving forward. The Applicant additionally submits that he felt that during this meeting intimidation techniques were used, such as being stood over, being pressured to attend another unscheduled meeting immediately afterwards, despite already feeling dysregulated, and feeling pressured and intimidated to answer questions on the spot and specifically "call people out on bullying and discrimination behaviours".
[48] In the following week during one of the Applicant's shifts from home, the Applicant had a scheduled meeting with Mr Fielding-Smith and Mr Gowers to complete his Monthly Performance Review. The Applicant notes that as the meeting changed at the last minute it caused him some distress. During the meeting, the Applicant's KPI results were discussed but the majority of the meeting focussed on the return-to-office plan. Mr Gowers proposed a meeting be held on 23 January 2026 to further discuss how the Applicant's disability affects his work life and the day-to-day requirements of the role.
[49] On 22 January 2026, Ms Lipsys emailed the Applicant thanking him for attending the office on 16 January 2026 and expressed how wonderful it was to meet in person and collaborate on developing a mutually agreeable plan to implement the accommodations proposed by Dr Garlick. The Respondent attached a return-to-work plan as discussed with the Applicant during the in-person meeting on 16 January 2026.
[50] The return-to-work plan indicates that all five accommodations proposed by Dr Garlick would be supported alongside an outline of the approach that would be taken to support the accommodations.
[51] On 23 January 2026, the Applicant attended a scheduled meeting with Mr Gowers where he states he attempted to provide an in-depth understanding of certain aspects of his disability, such as RSD, executive dysfunction, dysregulation events etc. The Applicant submits that this was a very difficult process as he had not previously discussed these topics with anyone outside of his medical practitioners, and close friends and family. The Applicant states that he felt unheard and that Mr Gowers became visibly annoyed at the Applicant for the amount of time the meeting was taking.
[52] Following the meeting, the Applicant made use of Human Resources' suggestion to utilise a local green space during his break time to destress before beginning his duties for the day.
[53] On 6 February 2026, the Applicant was scheduled to attend the office in person but experienced anxiety and a feeling of being overwhelmed due to the office environment. An hour and thirty minutes before the Applicant's shift were scheduled to begin, the Applicant reached out to his team leader who assured the Applicant that he would have support and told the Applicant, "You're fine, come into the office anyway". The Applicant submits that he felt dismissed and unsupported. Ultimately, the Applicant felt he could not attend the office and notified his team leader. The Applicant states that he did not receive a response for close to four hours before eventually being allowed to work from home.
[54] At 11:57am on 10 February 2025, the Applicant sent an email to my chambers requesting that an official ruling be made at the report back conference as he could not "continue dealing with the chronic stress and the significant impact that it's had on my mental health over the last 12-14 months". The Applicant was concerned that the Respondent may raise concerns regarding a global IT issue that agents across all departments experienced during December and January that stopped the Applicant from fulfilling his work requirements for about three weeks, but submitted that these issues, which prevented him from accessing the system, would have occurred even if he had attended the office during that time. The Applicant further expressed concerns that these global IT concerns impacted his performance and KPI results.
[55] At 9:38pm on 10 February 2026, the Respondent sent an email in reply acknowledging that the Applicant's correspondence sent earlier that day reflected his personal perceptions and experiences but noted that its documented records, contemporaneous notes, and witness observations differ from several of the matter presented.
[56] The Respondent then provided several documents to support their position. The first document was a copy of the email sent at 4:37pm on 15 January 2026 inviting the Applicant to the meeting on 16 January 2026. The email appears to have been sent to both the Applicant's work email address and a personal email address. The second document is a copy of the email sent on 22 January 2025 from Ms Lipsys to the Applicant outlined at paragraphs [49]-[50]. The third document was a copy of the email sent from Ms Lipsys to the Applicant on 12 January 2026 as outlined at paragraph [44].
[57] On 11 February 2026, a report back conference was held but the dispute was unable to be resolved. Both parties were, however, amenable to the matter being determined on the papers.
[58] At 10:56am on 11 February 2026, directions were issued for both parties to file any further submissions regarding the matter and serve a copy on the other party by no later than 5:00pm Wednesday, 18 February 2026.
[59] At 10:27 am on 20 February 2026, the Applicant was instructed via text message by Mr Fielding-Smith to attend the office from midday for at least half of the scheduled shift. Mr Fielding-Smith continued, stating:
"Should you not attend the office as directed, you are not approved to work any hours from home for today and all future Friday's until the commission makes a decision."
"Hi Jayden, I'm unable to attend the office ongoing as per medical advice.
I'm sure there will be a final ruling at last in the next few days.
So in relation to today specifically, within just one hour of setting up to start my shift you are instructing me that I am not allowed to work the 'in-office' ½ day from home?
But also you are further instructing that I am not able to attend my rostered ½ day Friday from home today?
"Hi Darren, we are instructing you that you are required to work at least half a day/shift in the office on Fridays. Should you not follow this instruction you are not approved to work from home on Fridays."
"Hi Jayden, you are fully aware that I've been on stress leave due to this Fair Work Case this week and that the final ruling is very soon.
And in fact, you had advised me that my MPR would be completed today (Friday the 20th) on Tuesday the 17th just passed. At no point did you mention anything about it being in-office or not being able to work my ½ shift at 4pm from home as per the in-office trial. That has never even previously been a guideline that has been set out, and/or agreed to by any involved parties from Allianz, including myself & HR who I hope have been involved in this process, for the sake of professional posterity and duty of care at this point.
So in consideration of my disability and the need to have been on stress leave this week due to the extended nature of this case. Following your more supportive tone from Tuesday in relation to my stress and mental health leave, this certainly feels particularly nasty and unkind, targeted and dare I say personal.
Either way the cold and inflexible nature of this message has been received from Allianz to me today.
This is overt and intentional alienation with incredible short notice (which known to be a trigger for me by Allianz), in direct response to the aforementioned need of my health and disability. Just so we are both [100 underlined emoji] clear and understanding of what being instructed. Allianz is not being professionally supportive or even considerate of my disability.
And further I am [100 underlined emoji] clear that you and Allianz are not allowing me to perform my role today due to the outlined medical limitations of my disability on ½ a shift in which I was already rostered to Work From Home."
"Hi Darren, I am yet to still receive your medical certificates for the 17/02 and the 18/02. Can you please provide this by the end of business today please."
[64] The Applicant sought to confirm whether a medical certificate was required for 20 February 2026 as well and the Respondent confirmed it was not.
[65] On 16 February 2026, the Applicant sent an email to my chambers noting that they did not wish to submit any further documents in support of the case.
[66] The Applicant submits that the refusal grounds stated in s.65A(5) of the Act are not applicable in this case.
[67] The Applicant submits that he should be supported to work from home by the Respondent due to the nature and intricacies of his disability.
[68] The Applicant submits that the FWA request would have no business impact, citing successful remote work for 10 months.
[69] The Respondent accepts that the Applicant has a disability reported as attention-deficit disorder and an associated anxiety disorder. The Respondent further accepts that the Applicant is eligible to make an FWA request, and the Applicant made such a request in accordance with the Act.
[70] The Respondent submitted that the Applicant's advice is inconsistent with the IME Report, which does not include the restrictions listed in the Applicant's FWA request.
[71] The Respondent submits that it has permanently offered the Applicant a permanent part-time arrangement working 30 hours per week, and the Applicant has accepted this arrangement. The Respondent submits this is the only limitation provided in the IME Report and has been met by the Respondent.
[72] The Respondent submits they relied on the IME Report when proposing an alternative arrangement as outlined in the 3 November 2025 letter to the Applicant.
[73] The Respondent submits that based on the findings of the IME reports, the Respondent sought to accommodate the Applicant's medical restriction of "working 30 hours per week on an indefinite basis." Accordingly, on 31 May 2025, the Respondent amended the Applicant's employment contract, these amendments included:
"i. Change of employment status to permanent part-time
iii. Introduction of a fixed hours work schedule"
[74] The Respondent submits it implemented these changes in direct response to, and in accommodation of the Applicant's medical restriction and stated preferences. Specifically, the Respondent adopted the Applicant's requested working hours and break times to support his desire for a fixed daily schedule that would allow him to maintain his exercise routine.
[75] The Respondent submits that the assertion that the Applicant's FWA request would have no business impact and has worked successfully for 10 months, is incorrect noting:
[76] The Respondent submits that it has attempted to facilitate the Applicant's return to the office throughout 2025 and that despite this, the Applicant has advised inability to attend work in-person.
[77] The Respondent further submits that it has acted reasonably and in compliance with its obligation under the Act and the alternative arrangement offered accommodates the Applicant's disability while balancing operational requirements.
[78] The Respondent submits the Applicant's employment contract dated 21 August 2023, and the Allianz Partners Enterprise Agreement 2023 are the relevant instruments governing the Applicant's employment. Item 7 Location of the employment contract states the Applicant's work location as the 'Brisbane Office'. Under bullet point 7 of the employment contracts it states:
"that you agree to abide by all policies of the Company as replaced, amended or varied from time to time. However, the policies of the Company are not incorporated into this letter and do not form part of your contract of employment."
[79] Clause 3.4 Flexible Working Arrangements of the Enterprise Agreement sets out the terms and conditions relevant to flexible working arrangements.
[80] Clause 3.5 Working from Home of the Enterprise Agreement sets out the terms and conditions relevant to working-from-home.
[81] In accordance with clause 3.5 Working from Home of the Enterprise Agreement, the Respondent's Flex@Work - Standard apply to the Applicant.
[82] Under definitions in Flex@Work at clause 2.1 Common Definitions in the Flex@Work - Standard Guidelines, it states:
"A working arrangement that enables an employee to treat their home or an approved alternative location as a place of work, as well as the local office location."
[83] The Respondent submits that it acted in good faith and took steps to support the Applicant's needs while ensuring operational requirements continue to be met.
[84] The Respondent submits that pursuant to ss.65A(3)(a)(i) and (ii) of the Act, the Respondent met with the Applicant to discuss the FWA request and to attempt to reach agreements.
[85] The Respondent submits that on 3 November 2025, it issued its written response to the FWA request in accordance with s.65A(1) of the Act. The Respondent submits that its written response also addressed its obligations under ss.65A(2), (3)(b),(c) and (d), (5), (6)(a),(b) (i) and (ii), and (c)(i) of the Act.
[86] The Respondent submits that it relies on s.65A(4) of the Act as the basis for reasonably refusing the Applicant's request to work from home for all rostered hours on a permanent basis. The Respondent's grounds include the following:
[87] The Respondent submits that taken collectively, these matters fall squarely within the statutory meaning of reasonable business ground under s.65A(4) of the Act.
[88] The Respondent submits that the refusal to not provide the Applicant a work-from-home arrangement for all shifts is both lawful and reasonable, and is supported by the employment contract, the applicable industrial instrument, the Flex@Work - Standard Guidelines, the medical evidence, and s.65A(4) reasonable business grounds. The Respondent has, however, accommodated the Applicant by supporting a working hybrid arrangement consistent with clause 3.5 Working from Home of the Enterprise Agreement and the IME recommendations.
[89] The Respondent submits that its requirement that employees attend the office on designated days, under a hybrid model, constitutes a lawful and reasonable direction. In Richard Johnson v PaperCut Software Pty Ltd, the Commission upheld the dismissal where an employee refused to comply with a hybrid policy that required office attendance, noting that an employment contract permitting occasional working-from-home does not create an entitlement to permanent working-from-home work, and that an employer's policy mandating office attendance on specified days is a lawful and reasonable direction.
[90] The Respondent submits the Applicant's employment contract and the Enterprise Agreement do not give an entitlement to permanent working-from-home. Therefore, the Respondent submits that its reliance on a hybrid model is therefore, consistent with the Applicant's employment contract, applicable industrial instruments, and the company's policy.
[91] The Respondent submits that the IME Report supports its hybrid requirement and does not support a need for a permanent working-from-home arrangement. The latter letter from Dr Garlick advocates that the Applicant would produce his best work from home however, the Respondent submits that this does not displace or contradict the finding from the IME Report that two days on-site is medically suitable.
[92] The Respondent submits that this matter can be distinguished from Chandler v Westpac, where the Commission ordered permanent working-from home after finding procedural deficiencies, insufficient business grounds, and an undue personal burden arising from childcare responsibilities. The Respondent submits Chandler is distinguishable on the basis that it turned on childcare responsibilities and an undue personal burden, not medical evidence indicating that some in-office work is appropriate. Further, unlike Chandler, the Respondent submits it has identified clear, role-specific operational, security, and team-based reasons that make permanent working from home impracticable, while still offering a hybrid pathway. The Respondent submits the procedural issues that were determinative in Chandler are not present here.
[93] The Respondent submits that its approach of hybrid attendance plus reduced hours is the least restrictive measure that balances the Applicant's needs with legitimate operation requirements consistent with Johnson.
[94] Therefore, the Respondent submits the Fair Work Commission should dismiss the application.
[95] Section 65 of Division 4 of the Act concerns requests for a FWA. An employee may request a FWA if certain circumstances apply. In this matter, Mr Huxhagen satisfies the circumstances of s.65(1A)(c). He is an employee that has a disability. This is not contested by the Respondent. An employee entitled to make the request must have completed at least 12 months of continuous service immediately before making the request.29 Applications must be made in writing, setting out the change sought and the reasons for the request.30 It is not contested that Mr Huxhagen complied with these requirements.
[96] Section 65A outlines the process for responding to FWA requests. Relevantly, s.65A(3) concerns when an employer may refuse a request. Section 65A(3) in its entirety is below:
"(3) The employer may refuse the request only if:
(i) discussed the request with the employee; and
(ii) genuinely tried to reach an agreement with the employee about making changes to the employee's working arrangements to accommodate the circumstances mentioned in subsection (1); and
(b) the employer and the employee have not reached such an agreement; and
(c) the employer has had regard to the consequences of the refusal for the employee; and
(d) the refusal is on reasonable business grounds.
Note: An employer's grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection 65C(5)."
[97] Further s.65A(5) provides for a refusal on reasonable business grounds and s.65A(6) requires the employer to explain the grounds for refusal. Section 65A(5) follows:
"Reasonable business grounds for refusing requests
(5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:
(a) that the new working arrangements requested would be too costly for the employer;
(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;
(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;
(d) that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested would be likely to have a significant negative impact on customer service.
Note: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b))."
[98] No jurisdictional matters have been raised in relation to this application. The dispute concerns the employer's refusal of the application on alleged reasonable business grounds.
[99] The Respondent has accommodated a reduction in Mr Huxhagen's hours of work to assist him manage his health. The IME Report found that Mr Huxhagen was functioning well working 30 hours per week with increased hours working from home.
[100] Dr Slack's medical opinion was Mr Huxhagen should be able to attend the office for at least two shift/days per week.
[101] The Applicant maintains that working from home is vital and necessary for him to help manage his health conditions. The Applicant's General Practitioner expressed a medical opinion that Mr Huxhagen would be able to produce his best work by continuing to work from home. However, if a trial was deemed necessary, his Doctor proposed a range of work accommodations to assist the Applicant. The Respondent has agreed to a range of accommodations consistent with this proposal for the Applicant's General Practitioner.
[102] The Respondent has previously agreed to change the Applicant's employment status to permanent part-time and provides a fixed hours work schedule. The Respondent has already implemented genuine changes to assist the Applicant while balancing operational requirements.
[103] The Respondent listed ten separate grounds, as set out in dot points above, to support its case under s.65A(4) to refuse the Applicant's request to work from home for all rostered hours on a permanent basis.
[104] I have weighed each of these matters as set out in the Respondent's submissions and am satisfied its reasons for refusing to agree to the Applicant working full time from home, constitute reasonable business grounds under s.65A(4) of the Act.
[105] I note the Respondent has already accommodated the Applicant by supporting a working hybrid arrangement. The IME Report supports this hybrid requirement and the Applicant's General Practitioner does not directly contradict this position.
[106] For the reasons set out above, I decided to decline to make the order sought by the Applicant, and I dismiss the application.
Printed by authority of the Commonwealth Government Printer
Darren Huxhagen
AWP Australia Pty Ltd trading as Allianz Partners [2026] FWC 745