Employment Law Termination NSW

Are your employees doing what they’re told?

An employee following the reasonable directives of their employer is one of the most fundamental and essential ingredients of the employment relationship. If this element of the relationship begins to break down, then the employment relationship can become fatally flawed.

Many employees (and employers for that matter) either do not understand or are blissfully unaware that failing to follow the reasonable directives of their employer constitutes serious misconduct at work which can result in Summary Dismissal (dismissal without notice).

The Fair Work Regulations’ definition of serious misconduct at work includes, among other things, the following:

“the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment”

This behaviour can be blatant or subtle and can occur in many different ways and for a variety of reasons. For example:

  • An employee does not comply with all or part of existing workplace policies and procedures because they don’t agree with them or are trying to avoid their responsibilities.
  • The employer introduces a new policy or procedure which the employee perceives as being unnecessary or trivial and then decides not to comply.
  • An employee tries to put their new supervisor to the test by ignoring his/her instructions.
  • The employer introduces a significant change and employees decide to push back by reverting back to the old way of doing things.
  • An employee continually arrives late for work or back from lunch after having been told to be punctual.

Whatever the reason, employers should ensure that such behaviour is dealt with swiftly and that employees are informed about the seriousness and possible consequences of engaging in such behaviour.

Tolerating this behaviour not only starts to breed contempt in the workplace, employers are also at risk of condoning the behaviour which can have the effect of making it acceptable practice in the workplace. This can have dire consequences for an employer who decides to dismiss an employee for serious misconduct and later finds themselves having to defend an unfair dismissal claim.

It becomes almost impossible to defend such a claim if an employee can successfully argue that their conduct was accepted practice in the workplace.

And finally, an employee cannot be expected to follow an employer’s directive if the directive is unlawful, unreasonable or carrying out such a directive would cause serious or imminent risk to the health or safety of the employee or other workers. Refusing to follow a directive under these circumstances does not constitute serious misconduct at work and cannot result in a summary dismissal.

For further advice and assistance with issues related to misconduct at work or what behaviour can result in a summary dismissal please contact our Employment Law Team.


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