Do we have to do what we are paid to do?

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.