Lawful and Reasonable Workplace Directions

Most workers are used to following their employer’s directions without question. In fact, it is an inherent expectation of employment that employees will carry out all lawful and reasonable directions. The problem is that it is not always clear exactly what “lawful and reasonable directions” mean in the Australian workplace. This article looks at the legality and meaning of the concept of lawful and reasonable workplace directions in Australia.

Workplace directions

Under Australian common law, employees have an implicit duty in their employment contract to cooperate with their employer, and to obey all lawful and reasonable directions. The Fair Work Act 2009 and the Fair Work Regulations 2009 also establish an employee’s obligation to follow workplace directions. Under this legislation, an employee can be guilty of serious misconduct if they willfully or deliberately fail to carry out lawful and reasonable instructions in a manner inconsistent with the continuation of the employment contract. 

Employees who refuse to carry out a reasonable and lawful directive can be subject to disciplinary action, including summary dismissal. With a summary dismissal, the employment is terminated without notice or payment in lieu of notice. For instance, in the case of Powell v Hunter Water Corporation [2012], an employee was directed to take his defective company car in for a service. When he ignored this instruction and continued to drive the vehicle to appointments, his employer terminated his employment for failing to follow a reasonable work direction. The Fair Work Commission rejected the employee’s unfair dismissal claim and upheld the corporation’s right to terminate the worker’s employment on the stated basis. Similarly, in the case of Burns v Sacred Heart Mission Inc [2014], an employer terminated a worker’s employment for serious misconduct for failing to attend a scheduled medical appointment without reasonable explanation, and failing to comply with directions to attend several meetings. The FWC found that the directions were lawful and reasonable, and the reason for dismissal valid and not harsh, unjust, or unreasonable. The employee’s application for relief was rejected.

Crucially, an employee does not have to follow an employer’s directive if it is:

• unlawful;
• unreasonable;
• beyond the ability, skills, or qualifications of an employee (such as operating machinery that a worker has no licence or experience using); or
• likely to cause imminent or serious risk to the health and safety of the employee or others.

Lawful and reasonable

It is usually straightforward to determine whether a directive is lawful. Simply put, an employer’s workplace directions must not require the employee to breach any state, territory, or federal law. For example, an employer cannot ask a worker to drive a company vehicle without the correct type of licence. It is often more difficult to assess whether a directive is reasonable. The relative reasonableness of an employer’s request depends on the particular circumstances of each case. When making a directive, an employer must consider the terms of the employment contract, the employer’s customary practices, the nature of the employee’s work, and the previous interactions between the parties.

Investigations

Although serious misconduct can trigger instant dismissal, an employer should still conduct a proper investigation if an employee fails to follow a lawful and reasonable directive. The focus of the investigation should be on discovering whether there were valid reasons for the employee to refuse to follow the directive. The employee may have genuine, if unfounded, safety concerns, or there may have been a miscommunication.

Once the employer has investigated, they may determine whether or not the failure to follow the directive was inconsistent with the continuation of the employment contract. If the employer does establish that the refusal constituted serious misconduct, they should still take specific steps, such as consulting with the employee, to demonstrate that any dismissal was the result of a fair process.

Case study

The Full Bench of the Fair Work Commission recently handed down a decision on an appeal case that centred around the issue of lawful and reasonable workplace directions. In Jeremy Lee v Superior Wood Pty Ltd [2019], an employee raised an unfair dismissal case when he was terminated after refusing to consent to the collection of his fingerprints. The sawmill company, Superior Wood, introduced biometric scanners to track shifts and register employee attendance.

The employee claimed the collection of his fingerprint was a breach of the Privacy Act 1988 especially as the employer had not followed certain procedures mandated by that legislation. The employee repeatedly refused directions from his employer to provide the biometric data, fearing that his fingerprints could be used indefinitely by unknown persons. The company warned the employee that if he did not consent, he would face dismissal.

The Commissioner acknowledged that the company was in breach of the Privacy Act in how it went about collecting the biometric data. However, at first instance, the Commissioner held that the dismissal was still fair because the collection of the fingerprints was reasonably necessary for the employer’s activities. The Commissioner found that the employee was entitled to withhold his consent, but this meant he was not following a reasonable workplace directive.

On appeal, the Full Bench found that the employer’s direction to consent to the collection of biometric data was unlawful because of the company’s failure to comply with the requirements of the Privacy Act. The employee was entitled to refuse the direction as unlawful and unreasonable due to these failures. The Full Bench also determined that the company’s actions in introducing the scanners was not reasonably necessary for the company’s activities. As such, there was no valid reason for the employee’s termination. The FWC directed that reinstatement was not an appropriate remedy, and instead ordered the employer to pay compensation in the amount of $24,117.08 (less tax) plus an appropriate superannuation contribution.

An employee who receives an unlawful or unreasonable direction at work should seek legal advice without delay. It is important to remember that an employee is legally responsible for their actions, even if they were following their employer’s instructions. The team at Go To Court can provide legal advice and representation in an unfair dismissal case. Please make an appointment using this form or phone 1300 636 846 for any legal assistance.