Continuing on from last week, we are still looking at what is and isn’t reasonable in the eyes of the Fair Work Commission when it comes to summary dismissal. This week’s case is a classic for any leader who has ever been met with the “not my job“ argument. It turns out, you can’t just summarily dismiss someone for refusing a task unless you’ve done the work to prove the request was both lawful and reasonable.
The Case: The Rubbish Run-In
A dance studio recently found itself at the Fair Work Commission after they summarily dismissed an instructor for serious misconduct. The issue? He refused to take out the rubbish after his shift ended.
The employer argued this was a refusal to follow a lawful and reasonable direction. However, the instructor pointed out that cleaning duties were not in his contract. More importantly, the request was made outside of his paid working hours.
The Ruling: Proportionality Matters
The FWC found the dismissal was harsh, unjust, and unreasonable. While employers certainly have the right to give directions, the summary dismissal of a professional instructor for a single instance of refusing an off-the-clock cleaning task was a massive overreaction.
The employer was ordered to pay nearly $25,000 in compensation. The Commission noted that the legal bar for serious misconduct is incredibly high. It requires deliberate behaviour that strikes at the heart of the employment contract. Taking out the bins simply doesn’t make the cut.
How to do it better:
- Understand “Reasonable”: For a direction to be reasonable, it generally needs to fall within the scope of the employee’s role and be performed during paid time. Asking a senior staff member to lead a project is reasonable; asking them to perform unrelated manual labour after hours usually isn’t.
- Seniority and Scope: As people move up in an organisation, and their salaries increase, what is reasonable changes. For leaders, expectations around managing teams, working reasonable additional hours or taking on extra tasks, can be deemed reasonable.
- Clarify the Contract: Ensure position descriptions are up to date. If an expectation is part of the core role, it should be clear. If you are asking for something outside that scope, it needs to be a conversation, not a command.
The Bloom HR Takeaway: The Small Business Myth
This case highlights a common misconception of the law that we see all the time: the idea that having fewer than 15 employees makes you immune to unfair dismissal claims.
While small organisations have a longer minimum employment period (12 months instead of 6), once that first anniversary passes, the gloves are off. If an employee has been with you for over a year, they have the full right to an unfair dismissal claim.
To be protected, you must follow the Small Business Fair Dismissal Code to the letter. This Code is your safeguard; by completing every step ie from providing valid reasons to allowing a support person, the Commission will generally find the dismissal was fair.
In this instance, the owner failed because they proceeded to summarily dismiss the employee without a valid reason under that Code. Don’t rely on the size of your organisation to protect you; rely on a fair process.
Are your position descriptions clear, or are your expectations leaving you exposed? If you are managing complex employee issues or are unsure of your rights and responsibilities, we can help.
Call us on 02 8114 4449 or email hello@bloomhr.com.au for a first free consultation
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