Pitfalls of refusing flexible leave requests
In Elizabeth Naden v Catholic Schools Broken Bay Limited [2025] FWCFB 82, the Full Bench of the Fair Work Commission found that the employer had failed to fully comply with the requirements of section 65A of the Fair Work Act when it responded to Ms Naden’s flexibility request, and consequently was not entitled to refuse the request on reasonable business grounds.
Background
Ms Elizabeth Naden, a teacher and Religious Education Coordinator (REC) at Sacred Heart Primary School Pymble, sought to return from parental leave in 2025 on a part-time basis (Wednesday to Friday) for Terms 1 and 2, due to childcare responsibilities. She proposed to resume full-time work from Term 3.
Her employer refused, insisting that she could not perform the executive REC role unless she returned full-time. The employer offered her a part-time teaching role only. Dissatisfied, Ms Naden challenged the refusal under the dispute resolution procedure of the Catholic Schools Broken Bay Enterprise Agreement 2023.
The Commission initially found in favour of the employer, but Ms Naden appealed that decision.
Full Bench decision
Section 65A(3) of the Act provides that an employer may refuse a flexible work request only if:
(a) It has discussed the request with the employee;
(b) It has genuinely tried to reach agreement;
(c) It has had regard to the consequences of refusal for the employee; and
(d) The refusal is on reasonable business grounds.
Section 65A(1) requires that the employer’s response be in writing and provided within 21 days of the request being made.
The Full Bench noted that Ms Naden had raised the financial consequences of the refusal of her request in the discussions with employer, but determined that because the employer’s consideration of the impact of that consequence was not recorded in its written response, it had failed to comply with the requirements of section 65A(3)(c).
The Full Bench also noted that the employer had not provided its written response within 21 days.
The Full Bench held that all four elements of s 65A(3) are substantive requirements, and that a failure in any one of these elements invalidates the employer’s ability to lawfully refuse a request.
Practical implications for employers
The decision highlights several critical compliance points for employers when responding to flexible work requests:
- Timeliness: Strictly respond within 21 days.
- Genuine Consultation: Engage meaningfully with the employee about accommodating their needs.
- Consider Consequences: Actively assess and document how refusal will affect the employee personally and professionally.
- Detailed Written Response: Clearly outline reasons for refusal, linking them to reasonable business grounds and demonstrating compliance with all procedural requirements.
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