Older worker's flexible work request and bid to preserve mental health rejected

The FWC (Fogo v Boeing Aerostructures Australia Pty Limited [2024] FWC 3037 (8 November 2024)) has dismissed a 61-year-old engineer's request to work remotely two days a week, citing no ‘objective and rational connection’ between his age to the need for flexible arrangements.

The worker argued the arrangement would help him transition to retirement and prevent mental health impacts from sudden lifestyle changes. However, FWC accepted the employer’s productivity concerns, and found there was insufficient medical evidence and a lack of objective connection between the request to continue to work full time, but with two days from home, and the worker’s eventual retirement plans.

Our Take

This case highlights the importance of employers critically assessing flexible work requests, particularly those based on age. Being over 55 with 12 months service provides a ‘provisional’ entitlement to flexible work arrangements but is not enough of itself to provide any type of flexible arrangement – particularly without genuine medical or other evidence.

While the decision protects businesses from unfounded requests, it also encourages employers to engage in open dialogue with aging employees and be mindful of the growing demand for flexibility in the workforce.

Action Items

• establish clear and practical guidelines to help manage expectations and ensure fairness

• factor in matters like operational efficiency, customer service impacts, cost implications, and the impracticality of the accommodation request, to minimise the risk of legal challenges

• train managers to engage in meaningful discussions with employees regarding their requests to better understand the employee’s circumstances and investigate alterative accommodations before providing a “no”

• document all communications and decisions with employees concerning flexible work requests

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