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10 August 2016 Do we have to do what we are paid to do?

By Warwick Ryan, Partner

In Oliver Stone's film Platoon, we see the experience of a young recruit in Vietnam.  His sergeant reinforces his intolerance for any deviation from the command and control management system at the core of the military in a conflict zone thus:

"Now, I got no fight with any man who does what he's told, but when he don't, the machine breaks down. And when the machine breaks down, we break down.  And I ain't gonna allow that in any of you.  Not one."

Be it a war zone or a 1920's production line, a hierarchical chain of command is the only system that will ensure that the job gets done.

So does this authoritative master/servant relationship still have a place in the modern workplace? Or can the modern worker pick and choose the duties they perform?

Do employees (still) have to do what they are told?

In a recent Fair Work Commission decision considering the termination of an ATO officer[1], the Full Bench confirmed that an employer is entitled to expect its employees to perform the duties assigned to them.  (I know – a craaazzy idea!)
Even so, there are limits on the employer's right to direct a staff member...

  1. Beyond their job description

If the duties or responsibilities being imposed upon the employee are not within the general scope of the employee's designated responsibilities or incidental to them, then the employee can refuse to carry out the work.

OK, fair enough, but does an employer have to designate every responsibility and task an employee is required to undertake? Well… no - thankfully.  The FWC has said[2] that it is not uncommon for position descriptions to be "… couched in general terms and not contain each and every current or projected task to be undertaken". The detail required will generally boil down to common sense and a question of degree.

2.  A threat to their health or safety

If the employer has not been alerted to a specific risk, it cannot be held liable for a psychological condition that arises from an employee merely being directed to carry out their role in accordance with their job description.   In the case that established this[3], the High Court held that the employer has a right to assume that the employee can perform the tasks they have agreed to perform without injury to their psychological health and, in this case, the employer had no reason to suspect the employee was at risk of psychiatric injury.        

Obviously, if the worker is required to:

  • use plant, equipment or substances that are defective or hazardous; or

  • contend with the aberrant behaviour of a manager, co-worker or even supplier or customer,

in carrying out their duties, then under work health and safety legislation, they are entitled to refuse to carry out that aspect of their duties.

3.  Not within their skills or capacity 

Getting back to the ATO decision[4], the employee, Mr Shamir, asserted that he did not have the capacity to undertake the duties assigned to him nor the required tax knowledge to engage in client communications.  However, the evidence indicated that:  

  • he had completed 68 training courses that were directly relevant to his role

  • where clients asked questions which were beyond his capacity to answer, Mr Shamir was entitled to take the question on notice

  • Mr Shamir was capable of preparing written correspondence to clients who preferred not to communicate by telephone, and

  • that if the employee had questions about any written correspondence, the correspondence could be reviewed internally before it was sent.

Thus the Court decided that he had the capacity to do the job.

It is always interesting how the law can make a seemingly simple concept look so difficult.

In this case, the employee refused to carry out the duties over an 11 day period during which he did union work and prepared his worker's compensation claim. He was paid throughout that period.

Worryingly, it was not until the matter came before the Full Bench of the Fair Work Commission that the employer was able to establish its right to direct an employee to carry out their role. At first instance, Commissioner Ryan had found that the "…mere non-performance of certain duties does not of itself found a reason for dismissal."

Should it be so revolutionary that an employer is entitled to require an employee to carry out their designated role and if the employee refuses to do so, to be able to terminate them?  

DO Employers have to provide a happy workplace?

Equally, it may have been extraordinary news for some millennial employees (but quietly relieving for less patient managers) when an appeal court recently held:

'It was not the legal responsibility of the [employer] to its employees to provide a happy workplace or one in which their productivity might have been enhanced by temperate and polite behaviour from those in managerial positions.'[5]

In an earlier blog, I commented on how the complexity of employment law is endangering Australia's economic future. That the ATO v Shamir decision required litigation through to the full bench  - with all its attendant cost in time and money - simply to enable an employer to establish such an elementary right - clearly highlights the mess the system is in. 

[1] Commonwealth of Australia (Australian Taxation Office) T/A Australian Taxation Office v Ron Shamir – FWCFB –  (21 July 2016) 
[2] Commissioner Cloghan in Tao Sun FWC (16 June 2014) (an unsuccessful application for anti-bullying orders)
[3] Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44
[4] ATO v Shamir – see footnote 1
[5] Eaton v. Tricare (Country) Pty. Limited QCA (3 June 2016)

This article was first published on LinkedIn as a blog. You can read the original here.

Warwick Ryan, Partner  |  Phone: +61 2 9233 5544  |  Email: wpr@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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