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Reasonable directions

An employee who wilfully ignores complying with an employer’s lawful and reasonable instruction, or a valid policy, faces the risk of being dismissed without a remedy. What are the bounds by which the legitimacy of an employer’s instuctions are tested?

“It is not disputed between the parties that an employee is required to comply with a lawful and reasonable direction issued by the employer. The test for whether a direction is reasonable and lawful is set out in R v Darling Island Stevedoring and Lighthouse Ltd; Ex parte Halliday and Sullivan 7 where Justice Dixon stated:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. Accordingly, when the award was framed, the expression “reasonable instructions” was adopted in describing the employees’ duty to obey. But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. 8

[24] In Woolworths Ltd (t/as Safeway) v Brown 9 a Full Bench of the AIRC was considering an appeal from a decision in an unfair dismissal matter. Central to the appeal was whether an employee’s refusal to comply with directions to remove an eyebrow ring whilst at work was a reasonable direction.

[25] In that decision the Full Bench observed that:

In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties. 10

[26] After considering authorities in relation to breaches of policy and the effect on employment the Full Bench said:

What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT Case, albeit in a somewhat different context, it is not the role of the Commission “…to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.” 11

[Footnotes omitted]

[27] In order to determine if the direction is reasonable it is necessary to consider each of the matters objected to by the CFMEU in turn.”

AGL Loy Yang v Construction, Forestry, Mining and Energy Union [2014] FWC 8093.

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