I want my employee in the office, not at home. Help!

Dear Aunty B,

I run a small business and have just been approached by one of my staff asking to work from home two afternoons a week to look after her young children.

This person is not the most productive person in the office and gets distracted easily. I already have performance issues with her. I asked her did she want to move to part-time work but she says no and that she is allowed to work from home under the new Fair Work rules.

She also pointed out that I let my PA leave early one day a week at 3.30pm to pick up her school kids. But my PA starts at 8am and often works late at night!

Aunty, what are the rules and what are my rights? And Aunty, there is one more thing. I don’t understand how this woman is going to get much work done at all with two kids under four. If I do have to let her work from home how do I manage it?

Want to say no,
Vic

Dear Want to say no,

Tricky isn’t it? And you are quite right. No one will get any work done with two kids under four. But you have had a request. So the thing to do is take a deep breath and approach this with an open mind and a determination to find a solution that suits you both.

Remember, you are not required to accept their proposal, so despite how you might feel, you do have some power in this negotiation.

Our legal adviser Peter Vitalie advises that you sit down and discuss the options with the employee and explain why one works for the business and the other doesn’t.

It may not have occurred to your employer that your PA comes in early or works late to make up that time as she is not there to witness it.

Then offer other alternatives. For example, can your employee come in early a few mornings a week and finish early on those afternoons and have them off?

Once you have agreed on an option, record it in writing and include in that the KPIs you expect her to meet. Implement it for a trial period and then review it.

If you can not agree, write to the employee, state your concerns and invite her to respond with constructive options. Vitalie says the reasons need to focus on the reasonable needs of your business and your written responses must focus on those issues. The additional cost or simple inconvenience won’t be enough, Vitalie says.

And giving a flat out no will make the employee resentful and even less productive.

Oh. Vitalie also makes another really good point. In the end, if work from home is the solution, the employer should carry out a health and safety assessment of the employee’s proposed working area at home as your OHS responsibilities don’t end at your own door – make sure it is absolutely safe to your standards before allowing any employee to work in that environment.

And here are the new rules.

Under the NES (Fair Work Act) employee has a right to request these arrangements, which can only be refused on reasonable business grounds.

Anti-discrimination laws also require employers to accommodate work arrangements for employees who have carer’s responsibilities, where it is not unreasonable.

The considerations which the Victorian Equal Opportunity Act require employers to consider probably reflect case law about what is reasonable. They are as good a place to start as any.

(a) the employee’s circumstances, including the nature of his or her responsibilities as a parent or carer; and

(b) the nature of the employee’s role; and

(c) the nature of the arrangements required to accommodate those responsibilities; and

(d) the financial circumstances of the employer; and

(e) the size and nature of the workplace and the employer’s business; and

(f) the effect on the workplace and the employer’s business of accommodating those responsibilities, including –

(i) the financial impact of doing so;

(ii) the number of persons who would benefit from or be disadvantaged by doing so;

(iii) the impact on efficiency and productivity and, if applicable, on customer service of doing so; and

(g) the consequences for the employer of making such accommodation; and

(h) the consequences for the employee of not making such accommodation.

Believe it or not the Act also offers some helpful content.

An employer may be able to accommodate an employee’s responsibilities as a parent or carer by allowing the employee to work from home on a Wednesday morning or have a later start time on a Wednesday or, if the employee works on a part-time basis, by rescheduling a regular staff meeting so that the employee can attend.

Good luck!
Your Aunty B

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