A refusal by an employee to undertake overtime at the direction of the employer will not be a valid reason for a dismissal unless the request is reasonable, which will turn upon the particular facts.
“Valid reason
[57] The reason the Applicant’s employment was terminated was because he refused to work past 6:30 PM on Friday evening.
[58] The Respondent employer had only told the Applicant that day that he required him to work past the normal finishing time of 6 PM.
[59] The Respondent’s position is that the Applicant was not following the employer’s direction which warranted dismissal.
[60] Recently a five-member bench of the Commission in the decision, Construction, Forestry, Maritime, Mining and Energy Union (105N) & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal – [2021] FWCFB 6059 (the Mt Arthur decision) considered at length the duty on employees to obey lawful and reasonable directions.
“[65] The seminal decision concerning the requirement of employees to follow their employer’s lawful and reasonable directions is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday50 (Darling) in which Dixon J summarised the common law position as follows:
‘Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. 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.’
[66] Recently the Full Federal Court in One Key Workforce Pty Ltd v CFMEU51 adopted a slightly different formulation of the implied term:
‘the duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621–2:
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.
As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21:
The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:
A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.
There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.’
[67] Whether expressed as a ‘lawful and reasonable’ direction or a ‘lawful’ direction in which the test for determining lawfulness is whether the direction is reasonable, may simply be a matter of semantics. In each case the direction must be ‘lawful’ and ‘reasonable’. The weight of authority supports the use of the expression ‘lawful and reasonable’; it is the expression used in the arbitral question posed by the Applicants and acceded to by the Respondent; and it is the formulation we have decided to adopt.
4.2 Some general observations
[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, though an employee is expected to obey instructions which are incidental to that work.
[69] Further, employer directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders; unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.
[70] The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle.
[71] Employees are only obliged to comply with employer directions which are lawful and reasonable.”
[61] With respect to whether a direction is reasonable, the Full Bench went on to explain as follows,
[80] We observe that the approach we have adopted in this matter is consistent with the following observation of the Full Bench in Briggs v AWH Pty Ltd:
‘The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan in the following terms:
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.
Footnotes omitted
[62] So it is in this case when considering whether the Respondent’s direction to the Applicant was reasonable. The Commission must consider the relevant context and specifically the nature of the employment, the established usages affecting it and common practices which exist.
[63] In this case the Applicant’s employment was apparently not covered by an employment contract or other instrument.
[64] However, given the direction to the employee in this instance concerned working additional hours, section 62 (Maximum Weekly Hours) of the Act, set out below, should be considered because this section prescribes criteria for determining whether additional hours are reasonable.
“62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full time employee—38 hours; or
(b) for an employee who is not a full time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee’s employer; or
(b) by or under a term or condition of the employee’s employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.
[65] Considering all of these matters the relevant context in this case was that Mr Bartlett for reasons unexplained needed someone to assist him work on a vehicle beyond normal working hours on the Friday evening. The Applicant did not have fixed hours of work however his working hours normally finished at 6 PM. The Applicants employer did not give the Applicant any forewarning or notice prior to the day in question that he would be required to work beyond 6:30 PM. When asked the Applicant immediately advised Mr Bartlett that he had commitments that evening so could only work through to 6:30 PM. There was another member of staff present that evening who was able to and in fact did assist Mr Bartlett complete the work on the vehicle after the Applicant left at 6:30 PM and there was no apparent detriment to the Respondent. Mr Buckley would not have received overtime payments for these hours as he was employed on a salary.
[66] The Commission’s decision is that whilst the direction to Mr Buckley from Mr Bartlett that he continue working after 6:30 PM on Friday, 1 October was a lawful direction it was not a reasonable direction.
[67] Consequently, this was not a direction Mr Buckley was obliged to obey and so his failure to do so was not a valid reason for his dismissal.
Conclusion
[76] Considering all the criteria above my decision is that the dismissal of Mr Buckley was unjust and unreasonable. Mr Buckley was unfairly dismissed.
Remedy
[77] Considering the option of reinstatement, given the animosity between Mr Buckley and Mr Bartlett and the very small size of the business I am satisfied that reinstatement would not be in either party’s interest and so would be inappropriate.
[78] I do however consider an order for the payment of compensation in all of the circumstances is appropriate.
[79] Turning to consider the statutory provisions regarding compensation prescribed in section 392 my decision is as follows.
[80] There is no evidence before the Commission that an order of compensation would affect the viability of the Respondent’s enterprise.
[81] The Applicant has been employed for a relatively short period of a little over one year.
[82] Considering the history of warnings and evidence of some other past conflicts between Mr Buckley and Mr Bartlett my view is that had Mr Buckley not been dismissed when he was then in all likelihood his employment would not have continued for longer than a further six weeks.
[83] I am satisfied on the evidence that Mr Buckley has made appropriate efforts to attempt to mitigate the financial loss he has suffered because of the dismissal.
[84] Mr Buckley has not earned any other remuneration which should be taken into account.
[85] Consequently, an order for compensation in the amount of six weeks wages will be issued. Given Mr Buckley’s salary of $75,000 per year this amounts to a gross figure of $8,653.85.
[86] An order to that effect will now be issued.”
Buckley v JPA Offroad Group Pty Ltd (2022) FWC 1290 delivered 26 May 2022 per Williams C