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Lawful and reasonable instructions: an employer’s rights

Sometimes you just need someone to do something. So you ask one of your employees. And they push back. Time to know your stuff around lawful and reasonable instructions and where employers and employees stand when push comes to shove.

The scenario
An employer asks a senior employee to provide temporary assistance to the Administration team in answering incoming calls for a period of time. The senior employee has the competence to perform the task but feels their seniority excludes them from this type of temporary assignment and refuses to comply with the employer’s request.

Bottom line: lawful and reasonable instructions
An integral element of any Contract of Employment is the implied duty for an employee to carry out a lawful and reasonable direction from their employer. Failure to follow such a direction may constitute serious misconduct.

Your compliance reference point
Regulation 1.07 of The Fair Work Regulations defines serious misconduct as:
Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.

This regulation goes on to list examples of serious misconduct, one of which is:
The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

How an employer can use this information
Failing to follow a lawful and reasonable instruction from their employer may constitute serious misconduct under the Fair Work Act. Instances of serious misconduct may result in an employer taking disciplinary action against the employee, up to and including termination of employment.

What should you do if your employee refuses to follow an instruction?
Many employers and employees are not aware of the implicit obligation of an employee to carry out a lawful and reasonable direction from their employer. Few are also aware of the Fair Work Regulation definition of serious misconduct and of specific wording in this Regulation around an employee’s refusal to carry out a lawful and reasonable instruction. When faced with an employee refusing to follow an instruction, the employer would be well placed to provide the employee with the Fair Work Regulation information then ask the employee to undertake the task again in light of awareness of their obligations.

Employers with the foresight to hold well worded employment documentation will also have:

  • wording in their Position Descriptions on following a reasonable management request
  • a clause in the Contract of Employment specifying the employee’s obligations to the employer
  • at least one policy relating to the employer’s approach to employee counselling and discipline

Any fine print to be aware of?
An employee will not be expected to follow an employer’s directive if the directive is unreasonable, unlawful, outside the qualifications or skill set of the employee or has potential to cause risk to the health and safety of the employee or other persons.

If you’re a business owner your time is best spent growing your business, not managing employee dramas. You don’t have time to know legal mumbo jumbo around lawful and reasonable instructions…but we do. Give Bare Bones Consulting a call: we’ll develop a HR structure that not only effectively addresses issues when they occur but prevents them happening in the first place. That’s time and money back for you.

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Note: Bare Bones Consulting provides HR services for employers. Employees seeking advice on workplace concerns should contact the Fair Work Infoline on 13 13 94.