Tuesday, 14 July 2020

When can an employer issue a lawful and reasonable direction?

What is a lawful and reasonable direction?

Employees have a general obligation to comply with a lawful and reasonable direction from their employer. What is “reasonable” will depend on the circumstances, taking into account the employee’s role, the terms of the employment contract and practices in the workplace. What will be “lawful” will depend on whether there is any legislation or industrial instrument which restricts or allows an employer to issue such a direction.

Lawful and reasonable directions can extend to a number of tasks or activities. For example, a direction may be specific to an employee performing a task in line with their employment contract. Another example of a lawful and reasonable direction may be to require an employee to undergo a medical examination to ensure they can safely perform the inherent requirements of their role.

Given the current COVID-19 crisis, employers may wish to issue directions to staff to protect the health of their workforce such as requesting employees to work alternative hours or from a different location, to undergo COVID-19 testing and/or provide medical information confirming they are fit to be in the workplace and/or temperature testing.

But what happens if an employee refuses to comply?

Can an employee refuse to comply with a lawful and reasonable direction?

Whether an employee can refuse to comply with a lawful and reasonable direction will depend on its reasonableness, and this in turn will depend on the particular circumstances of the employee.

Where the request is reasonable, the failure of an employee to follow a lawful and reasonable direction may be grounds for the employer to take disciplinary action against that employee (such as issuing a warning), and in some cases may constitute a valid reason for dismissal, provided a fair process is also followed.

In the recent case of Kieran Knight v One Key Resources (Mining) Pty Ltd T/A One Key Resources it was held by the Fair Work Commission (FWC) that a direction for employees to complete a COVID-19 survey was lawful and reasonable. The employee in this case was required to complete a survey in March 2020 confirming his travel history to countries at risk of COVID-19 and his future travel plans for the next six months. At the time, Australia had recorded its first deaths from COVID-19 and international travel restrictions were starting to be imposed.

The employee refused to complete the COVID-19 survey and claimed that he did not have to disclose this information on grounds of privacy. The employee was subsequently dismissed for not following a lawful and reasonable direction and the employee then filed an unfair dismissal application.

The FWC found that the information requested was not sensitive, and therefore not protected by Australian privacy laws. This was on the basis that it was travel information, and the FWC commented that its decision may have been different if the survey had instead involved the collection of sensitive health information about the employee. The FWC held that the direction to complete the survey was a lawful and reasonable direction for the purposes of fulfilling health and safety obligations to protect its employees from risk, and given that the employee had repeatedly refused to complete the survey, the employer had a valid reason for dismissal.

JobKeeper Enabling Directions

Other lawful and reasonable directions which may be issued in the context of the COVID-19 pandemic are “JobKeeper Enabling Directions”.

Employers who qualify for the JobKeeper scheme can give a “JobKeeper Enabling Direction” to their employees in respect to whom the employee receives JobKeeper subsidy payments. This essentially means that where an employer gives the direction, employees are obliged to:

  • Reduce their hours of work (including reducing their hours to zero), otherwise known as a “JobKeeper Stand Down Enabling Direction”;
  • Perform any duties within their skill and competency, as long as the duties are safe, and the employee is licensed and qualified to perform the duties; and/or
  • Change the location (including to the employee’s home) from which the employee performs the work.

Such directions will constitute a “lawful and reasonable direction” and if an employee refuses to comply with a JobKeeper Enabling Direction without valid reason, the employer may depending on the circumstances consider disciplinary processes against the employee for refusing to follow a lawful and reasonable direction.

We have previously discussed JobKeeper Enabling Directions in a recent article – click here.

Can an employer direct an employee to be tested for COVID-19?

Given that the number of COVID-19 cases is on the rise again, we consider that an employer can, depending on the circumstances and particularly if based in Victoria, require an employee to be tested for COVID-19 or provide a medical clearance before they attend the workplace in order to ensure a safe place of work with minimal risks to health.

We would recommend that a consultative approach with employees take place in the first instance, to seek the employees’ consent to take a COVID-19 test where there is deemed to be health risk to other employees or the workplace. However, where an employee refuses, this may be grounds for disciplinary action for failing to follow a lawful and reasonable request, depending on the individual circumstances.

What does this mean for employers?

The above case is a reminder to employers that employees can be directed to comply with lawful and reasonable requests, particularly where the purpose of the direction is to ensure the safety of the workforce, particularly in the current COVID-19 pandemic.

However, any direction must be reasonable, and if it is not, taking disciplinary action against an employee for failing to follow an unlawful and reasonable direction is likely to be unfair.

Before issuing a direction to disclose personal or sensitive information, employers should be mindful of requests to employees to disclose personal medical information, as there may be privacy obligations involved. Employers must also be careful in collecting and storing information and comply with privacy legislation, together with health and safety laws.

HR Legal can provide advice and assistance to employers in respect to lawful and reasonable directions. Please call 03 9948 2450 for assistance.

Case reference: Kieran Knight v One Key Resources (Mining) Pty Ltd T/A One Key Resources [2020] FWC 3324 (29 June 2020)

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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