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Commanding with compliance: Legal guidelines for employers

At the core of the relationship between an employer and an employee is the staff member’s duty to follow and obey any lawful and reasonable direction issued by their employer.

Employment contracts have this duty as an implied obligation, but it’s also often explicitly agreed upon between the relevant parties in a contract. This obligation goes one step further for people employed by the Commonwealth, who have a legislative requirement to obey lawful and reasonable directions.

This legislative requirement is laid out in the Public Service Act, which forms the basis of the Australian Public Service Code of Conduct. The Act states “an APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has the authority to give the direction.”

The basis for reasonable direction in law

The legal basis for public sector employees’ obligation to follow lawful and reasonable direction stretches all the way back to 1938, where a decision in a case established that a direction is lawful and reasonable if it relates to the subject matter and scope of the individual’s employment, involves no illegality and is reasonable. 

Further guidance is provided by the Australian Public Service Commission (APSC), which notes a direction must be lawful and reasonable, and whether it is reasonable will depend upon all the circumstances.

So, what’s a reasonable direction? According to the APSC, “a reasonable direction [is] 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.”

It also highlights the need for a reasonable direction to be proportionate to the end to be achieved.

The limits of reasonable direction

Employers don’t have unlimited powers to direct employees, and those employees are not required to comply with a direction that’s outside the scope of their employment, even if the direction is otherwise reasonable.

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 in a 1996 ruling which found employees must obey lawful commands, not all commands.

For example, the case found an employee does not commit a breach of duty if they refuse to attend a particular church or wear a certain maker’s singlets. Employees have a common law right to wear what they choose and act as they choose in matters not affecting their 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 [their] employment [is] a somewhat broader expression than “in the performance of [their] duties under the contract.”

Illegal directions

Workers also have no obligation to follow illegal directions. A direction is unlawful if it breaks the law, such as a legislative requirement or obligation. The question of whether a direction is lawful also hinges on whether there was a source of power enabling the direction to be given.

These general principles also apply in respect of any condition of employment that is imposed on an employee.

The consequences of not following a direction

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.

By Holding Redlich, Partner, Andrew Klein 

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