Adviser wins WFH trial over commute fatigue

Victoria University must come to a compromise with a student adviser who requested to work from home due to exhaustion from his daily commute.

The basis of the employee’s argument was that they were experiencing physical fatigue from the commute to work and that partially working from home would reduce this impact.

The university first received the request on 27 June 2025 and followed an earlier arrangement whereby the employee took one day of long-service leave each week until it was exhausted, at which time the request was sent.

The email read: “I am writing to formally request flexible working arrangements in accordance with section 65(1) of the Fair Work Act (FW Act).

“Specifically, I would like to transition to a hybrid working model that includes working from home two days per week.

“As a worker aged 55 or older, this arrangement would help reduce physical fatigue associated with commuting and support my continued productivity and wellbeing.”

A university representative, Tessa Benson, requested supporting documents and offered a rostered day off (RDO) cycle every two to four weeks.

During a 7 August 2025 meeting between the employee, their support person, Benson and senior HR business partner Linda Bayley, the request and relevance to the employee’s age was allegedly discussed.

Following this, the employee proposed a “flexible working trial period where I would undertake working from home two days a week until the end of this year with the view of making the arrangement permanent”.

Despite this, the university declined the request on the basis that the student adviser role required in-person availability and accessibility at all times. In the 14 August 2025 decision, Benson noted that the City Tower campus that the employee worked at was the business of all its student service centres, and that face-to-face booking was more popular than online or by phone.

The email said: “This highlights the importance of maintaining strong in-person availability to meet student demand, deliver a positive student experience and uphold high service levels.”

Emails between Benson and the employee during this time show that remote-working Fridays were offered until December 2025, at which time a review would be conducted. However, the employee did not accept this offer, adding that she did not believe the university had reasonably considered her request.

An application to the commission for resolution was made by the employee on 21 November 2025, with the parties disagreeing on whether the university was able to refuse her request.

With the university not satisfied that the employee experienced age-related fatigue, it was necessary for Fair Work commissioner Oanh Thi Tran to determine whether the employee demonstrated a strong enough connection between the circumstances and the change, as dictated in the Fair Work Amendment Bill 2013.

As such, establishing this connection did not necessarily require a medical reason to support the request.

Based on documentary and oral evidence from the applicant, Tran was satisfied that “she experiences fatigue from commuting, which she experiences as a worker over the age of 55, and the proposed arrangement addresses those circumstances”.

Concerning the requirement for the institution to have regard to the consequences of the refusal as required by s 65A(3)(c), Tran was satisfied, given the recorded consideration the university gave the request. In the same way, it was accepted that the university complied with s 65A(3)(a) and 65A(3)(b) as the university discussed the request with the employee and attempted to come to an agreement, but was not able to.

In this way, it was determined the university had reasonable business grounds to refuse the employee’s request due to the specific circumstances of the student adviser role, with the applicant agreeing in cross-examination that the role was primarily to attend to student inquiries.

With no agreement reached between the parties, the commission noted that it was able to make an order in this matter, as noted in s 65C(3) that reads: “The FWC may make an order under paragraph (1)(f) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.”

As such, Tran found it reasonable and fair “to order that the University implement its alternative proposal of [applicant] working from home one day per week”.

“While the university has proposed Fridays, my recommendation is that for a 6-month period, the parties confer with a view to agreeing about the trial work from home day. Failing agreement, I recommend that Wednesdays be the one day per week that [applicant] works from home,” Tran said.

With the trial of six months commencing 27 October 2026, Tran said: “The arrangement is to remain in place until the parties reach agreement about a change to the arrangement.”

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