08 November 2023
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An employee’s duty to follow and obey any lawful and reasonable direction issued by their employer is a fundamental aspect of the employer-employee relationship.
This duty is an implied obligation within all employment contracts and is often explicitly agreed upon between parties by way of contract. Employees of Commonwealth departments and agencies have a legislative requirement to obey lawful and reasonable directions, courtesy of subsection 13(5) of the Public Service Act 1999 (which forms part of the Australian Public Service (APS) Code of Conduct), which provides as follows:
“(5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction”.
This implied contractual duty of an employee to follow directions given by their employer is well-established in the common law. The Australian Public Service Commission (APSC) also provides guidance with regard to the application of the requirement in the APS Code of Conduct to obey lawful and reasonable directions
The seminal authority on what constitutes a lawful and reasonable direction is seen in R v Darling Island Stevedoring & Lighterage Co; Ex parte Halliday and Sullivan (1938) (R v Darling Island). In summary, it was established in this decision that a direction will be lawful and reasonable where it:
The APSC provides the following guidance regarding what will constitute a lawful and reasonable direction [our emphasis]:
“Reasonableness of the direction
2.35. A direction must be both lawful and reasonable. Whether it is reasonable will depend upon all the circumstances.
2.36. A reasonable direction has been described as one with the object of securing proper values to be required of a public servant, and, in particular, the maintenance of public confidence in the integrity of the public service and public servants. A reasonable direction needs to be proportionate to the end to be achieved”.
The APSC publication, Values and Code of Conduct in Practice, provides similar guidance, stating:
“3.3.3 A direction must be reasonable in the circumstances and needs to be proportionate to the end to be achieved”.
We consider each of the elements of R v Darling Island (taking into account the proportionality requirement in the relevant APSC guidance) below.
Direction must be within scope of employment
Employees are not obliged to comply with a direction to perform work or carry out duties or activities that are outside the scope of their employment, even if the direction might otherwise be reasonable. An employee is therefore only required to obey directions that is within the scope of their employment.
The rationale for this limitation is that it is necessary to prevent the total subordination of an employee's autonomy to the commands of an employer (McManus v Scott-Charlton (1996) 70 FCR 16; [1996] FCA 904). This limitation was conveniently summarised by the President of the then Court of Conciliation and Arbitration in Australian Tramway Employees' Association v Brisbane Tramways Co Ltd as follows:
“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”.
By way of further expanding on this concept, in considering whether a direction was lawful and reasonable for the purposes of the unfair dismissal regime, a full bench of the Fair Work Commission commented that the expression "within the scope of a contract of service" does not merely refer to the terms of the contract. Rather, the expression encompasses all matters connected with the job performed by an employee pursuant to his or her contract of employment, and any of its incidents. In this respect, the Court in Moreton Bay College v Teys [2008] QCA 422 found that the scope of employment is a broader concept stating:
“…that “in the course of his employment” was a somewhat broader expression than “in the performance of his duties under the contract”.
Direction must not be unlawful
A direction will generally be unlawful if carrying it out would breach a law (e.g., a legislative requirement or obligation). The question regarding of whether a direction is lawful will also generally turn on whether there was a source of power enabling the direction to be given (McManus v Scott-Charlton (1996) 70 FCR 16; [1996] FCA 904). The same principles apply in respect of any condition of employment that is imposed on an employee.
Failure to adhere to an employer's lawful and reasonable directions can have serious consequences, including disciplinary actions or termination of employment. Disputes often arise concerning whether a particular directive was, in fact, lawful and reasonable. Such disputes also often form part of proceedings related to unfair dismissal or adverse action under the Fair Work Act 2009.
In the context of employees of the Commonwealth, a failure to follow a lawful and reasonable direction will constitute a breach of the APS Code of Conduct, which may result in a range of sanctions being applied, including termination of employment.
If you have any questions regarding this article, please get in touch with a member of the team below.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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