Where do you draw the line? Case dives into tasks that may be done outside of a role
A recent Fair Work Commission (FWC) decision had faulted an employer who asked its workers to perform duties outside the scope of their position description and then dismissed them when they refused.
The employer describes itself as “a major integrated port solutions provider in the country that handles containers, bulk, automotive and general cargo.” The workers were its shift managers.
When the employer’s stevedores took industrial action, the workers were asked to perform their work at the terminal during the said period. The workers, hired initially as shift managers, declined the employer’s request and stood down. Later on, they were dismissed for “not following a lawful and reasonable direction.”
The workers argued that stevedoring work was “not included in their contracts of employment; not included in position descriptions, and not work they had undertaken in the past in their capacity as “shift managers.”
They also said that if the employer’s request was “lawful,” their refusal to work was reasonable because “to accede would undermine working relationships with stevedores following the conclusion of industrial action.”
The workers also said they were “not qualified to perform stevedoring work,” but they were “at all times ready and willing to perform the duties of shift managers.”
In its defence, the employer said that the workers were directed to perform duties that were “incidental and alternative” to their job and “within the scope of their roles” as managers. Thus, the employer said that the work was “reasonable, necessary, and safe.” The employer also said the workers “repudiated” their employment contracts when they did not perform its request.
Did the employer’s request fall within the scope of the worker’s position?
No. The FWC said that the duties of a shift manager include supervision, management, coordination, and auditing. The position does not include “any incidental hands-on or manual labour,” so stevedoring work was “not incidental to the role.”
Was the employer’s direction lawful or reasonable?
No. Since the FWC found that the employer could not justify its request, the former ruled that there was “no valid reason for dismissal.”
Was the employee correct when it said the workers “repudiated” their contracts when they failed to perform its request?
No. In its decision, the FWC explained that the workers “were prepared to do their own jobs, [but they] were not prepared to perform work for which they were not trained or qualified to perform or for which they were not employed to undertake.”
When does a “repudiation” of an employment contract occur?
For a repudiation to occur, the [workers] would have to breach their employment contracts' “fundamental term.” The FWC said that it assessed the terms of the contract and analysed the position description of a shift manager and found that their roles did not include stevedoring work, so there was no repudiation.
The remedy
The FWC found that “trust and confidence could be restored” between the workers and their employer. Hence, it ordered the workers’ reinstatement with continuity of employment and back pay less any money earnt by each worker in the intervening period.
The decision was handed down on 28 February.
