Unfair dismissal; what is a lawful and reasonable instruction?

An employer may insist upon its employees complying with lawful and reasonable instructions. What constitutes a lawful and reasonable instruction?

“An employer clearly has authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable. 25 In R v Darling Island Stevedoring and Lighterage Co Ltd; Ex part Halliday,26 (Darling Island Stevedoring) it was held:

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 services and are reasonable.

The Full Bench in Briggs v AWH 27 stated that the determination of whether an employer’s direction was a reasonable one did not involve an abstract or unconfined assessment as to the justice or merit of the direction. The employer, therefore, is not required to demonstrate 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’.28 Adopting the approach identified in Darling Island Stevedoring, the Full Bench cited Dixon J, quoting:

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. 29

It is well accepted that behaviour outside working hours may have an impact on employment ‘to the extent that it can be said to breach an express term of [an employee’s] contract of employment’. 30”

An extract from Waddy v Ability Centre Australasia Ltd (2021) FWC 3030 31 May 2021 per Beaumont DP