By Clayton Payne, Special Counsel
A worker is required to follow a direction by their employer that confidentiality be maintained during an investigation. The direction ensures that communications in relation to the associated complaint can only be made to certain people and in certain ways.
Are such directions “lawful and reasonable”?
Will a breach of such directions amount to fair and reasonable grounds for dismissal?
These matters were recently considered by the Fair Work Commission in Ellem.
The worker had been employed by the employer, a commercialised water authority and registered service provider, for almost 18 months in a full time capacity as a Senior Land Officer.
The worker unsuccessfully applied for a position as the Capital Works Co-Coordinator. The worker was aggrieved by both the process used in the appointment and the successful applicant’s qualifications.
Subsequently, the worker raised the matter with his local member of parliament, and the matter was later referred to the Queensland Ombudsman and the Queensland Crime and Corruption Commission (CCC) for investigation. The CCC referred the matter back to the employer for investigation.
The worker sent various emails regarding the allegations to the employer’s general email address. Consequently, a Director of the employer’s board directed the worker in writing not to use the employer’s general email address to communicate about such issues and to only correspond with him and another employee, regarding the matters referred to in the emails (and the investigation). The Director claimed that this was due to the nature of the material, the need to ensure strict confidentiality and the integrity of the investigation that was being undertaken, along with the fact that the general email address was accessible to several staff members. In light of the investigation in particular, it was claimed that using the employer’s general email address was inappropriate and contrary to the employer’s Code of Conduct.
Again, the worker was reminded in further correspondence about the need to preserve confidentiality in relation to the investigation, and not to use the employer’s general email address for communication.
Later, the worker sent out a number of emails advising the recipients of his intention to take legal action against the employer and others, both to private email accounts and to the employer’s general email address, again allegedly touching on matters relevant to the investigation.
The worker was suspended on full pay, and requested to ‘show cause’ as to why his employment should not be terminated on the basis of alleged breaches of confidentiality and actions in direct contravention of directions given by his employer and its Code of Conduct. The worker was subsequently summarily dismissed, although provided with four weeks’ pay in lieu of notice.
Consequently, the worker sought reinstatement and orders for lost pay, maintaining that he believed that the termination occurred because he took a stand against his employer and the purported wrongdoings of executive management (a view which was refuted by the employer).
Commissioner Booth found that:
“A direction to an employee that is unreasonable will not provide a valid reason for termination. In Austal Ships case a Full Bench of the Australian Industrial Relations Commission stated as follows:
Of all particular relevance to this case is the proposition that the failure to comply with an unreasonable direction does not provide a valid reason for the termination of a person’s employment. This proposition also accords with authorities dealing with the extent of an employee’s obligation to obey lawful orders. The general consensus now is that an employee is only obliged to obey orders which are both lawful and reasonable”.
However, in this instance, the Commissioner found that the directions given by the employer to the worker were both lawful and reasonable, and had been clearly communicated to the worker. The worker’s conduct was found to be a deliberate breach of clear directions.
In this case, the Commission found it reasonable for the employer to request that confidentiality be maintained in relation to an investigation into allegations of corruption in particular.
Most of all the decision highlights the fact that workers are generally obliged to follow directions given by an employer, which are both lawful and reasonable. If such directions are both lawful and reasonable, and workers fail to abide by them, the employer will be in a much stronger position to substantiate a subsequent termination of employment.
The case also demonstrates that an employer can assert reasonable controls over an employee’s conduct, without being subjected to adverse findings.
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