Are employees obliged to do everything their employer tells them to do?

In this article we will examine an employee’s duty to obey lawful and reasonable directions issued by their employer. We will look at what constitutes a lawful and reasonable direction and offer useful examples of what not to do. We will also explore what an employer can do if an employee does not comply with a lawful and reasonable direction.

What is a lawful and reasonable direction?

There is an implied term in every employment contract which requires an employee to comply with lawful and reasonable directions from their employer. Often, written contracts of employment will include an express term to this effect. The term goes to the core of the employment relationship. It gives effect to the right of employers to exert ‘’control’ over an employee’s performance and conduct at work. This includes the employer’s ability to dictate what the employee will be doing during their employment, how they will do it, when they will do it and where they will do it.

That being said, the employer’s directions must be lawful and reasonable. Thus, employers can expect employees to cooperate with directions that relate to the scope of their employment, do not contravene State, Territory or Commonwealth laws and are reasonable.

What is a lawful direction?

A lawful direction will fall within the implied or agreed upon terms and conditions of employment and involve no illegality.

An unlawful direction will:

• direct the employee to act in contravention of State, Territory, or Commonwealth laws;
• direct the employee to partake in dangerous activity that poses a risk to their safety or falls outside of their scope of employment; and
• direct the employee act in a discriminatory or unlawful manner.

What is a reasonable direction?

A reasonable direction will depend on the employer and employee relationship. Thus, what constitutes a reasonable direction will be subject to the express and implied terms of the employment contract. A reasonable direction will depend on the circumstances applicable to the employee specifically and the workplace more generally. It will take into account various considerations, such as the employee’s role, seniority, skills or qualifications, policies and procedures in the workplace and the terms of their employment contract, as well as any relevant modern award or enterprise agreement.

An unreasonable direction will:

• direct the employee to complete tasks that exceeds their skill set or qualifications; and
• direct the employee to act well outside the scope of the agreed upon role and duties;
• fail to properly consider the employee’s personal circumstances.

As what constitutes a reasonable direction, in part depends upon the contractual terms of the employment contract, it is important to have sound written employment contracts. If an employer needs flexibility that allows for employees to perform various duties for example, or work flexibly, it is important to make this a term of the contract. This will allow, for example, the employer to direct the employee to perform duties that fall outside the original scope of their role, or at times not part of the regular hours of work.

Examples of lawful and reasonable directions

It is impossible to give a comprehensive list of directions that would be lawful and reasonable, as the issue turns largely on the specific circumstances, however by way of illustration we set out below what would, in most circumstances, be lawful and reasonable directions:

• require an employee to submit to an independent medical examination in circumstances where the employee has been off work for an extended period of time due to illness or injury;
• require employees adhere to the company dress code and other standards of behaviour and appearance;
• require employees be punctual and act in accordance with the company’s policies and procedures;
• require employees to comply with work health and safety requirements;
• require employees to stay away from work or work from home to prevent the risk of exposure to, or spread of a contagious illness (used regularly throughout COVID-19 by employers);
• require employees to attend the office or workplace; and
• require employees to complete tasks and duties in line with their contractual obligations.

Can an employee refuse to follow a lawful and reasonable direction?

An employee cannot lawfully refuse to comply with a lawful and reasonable direction. However, it is important to ensure that the direction is both lawful and reasonable, as employees are entitled to refuse to adhere to unreasonable directions. By way of illustration, it may be entirely lawful and reasonable for a retail employer to direct that their employees work on a Sunday public holiday evening (depending on rosters, family commitments and notice provided to the employee), but entirely unreasonable to require an employee, working as a receptionist in an office environment, to do so.

Where the request is lawful and reasonable, the failure of an employee to follow the direction may be grounds for the employer to take disciplinary action against the employee, including termination of employment. Notably, regulation 1.07 of the Fair Work Regulations 2009 (Cth) provides that not following a lawful and reasonable direction can amount to serious misconduct (however, we caution that not every failure will be sufficient to constitute serious misconduct).

It is important that if an employee refuses to abide by a lawful and reasonable direction, an employer responds promptly so that it does not appear to condone or accept the refusal. It is impermissible for an employer to rely on an employee’s failure to follow a lawful and reasonable direction, as a basis for disciplinary action if:

• the direction was ambiguous;
• the employee was not made aware of the consequences for failing to abide by the direction; or
• the employer acquiesces in the non-compliance.

It is also important for the employer to keep detailed records of the direction given, the employees refusal and the employer’s action in response.

BHP Public Holiday High Court Challenge

A very timely and relevant special leave application has been made to the High Court dealing with the issue as to whether BHP can direct employees to work on public holidays. The very fact that this matter is now before the High Court shows how complicated the seemingly most basic concepts can be. As we write this article, BHP has launched a High Court challenge to a ruling of the Full Federal Court, that found employees of a labour hire employer, unreasonably required employees to work across the Christmas holidays in 2019. We will need to wait and see whether the High Court will grant leave to hear this matter, or the decision of the Full Federal Court will stand.

How to avoid non-compliance?

It is helpful for employers to have standard directions and clear expectations regarding behaviour and company procedures set out in workplace policies. The policies should also make clear the consequences for non-compliance. It is also important that contracts of employment are appropriately drafted to ensure the employer’s expectations are clearly set out. Ensuring that your employees are subject to clear terms and conditions of employment, contained in a written contract of employment, and the employer has robust policies and procedures which set out the standards of behaviour required by its employees, will go a long way to ensure employers are able to properly direct their employees.

Key Takeaways:

1. Every contract of employment imposes an implied duty on employees to obey lawful and reasonable directions.
2. Employers must consider that the implied duty is subject to any express terms of the employment contract.
3. A lawful direction cannot require employees to contravene laws or ask them to act outside the course of their employment.
4. A reasonable direction will depend on the circumstances of employment but should not request employees to complete tasks that exceed the scope of their skills.
5. Employees have the right to disobey unlawful or unreasonable directions.
6. If an employee does not comply with a lawful and reasonable direction, the employer should respond promptly and take appropriate disciplinary action.
7. An employee’s failure to comply can amount to serious misconduct, however this will depend on the nature of the disobedience and the direction under consideration.
8. It is important that employers consider implementing policies and procedures to mitigate the risk of non-compliance.