Employer says worker's conduct in refusing to follow lawful instructions constituted serious misconduct
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim where a worker challenged his summary dismissal.
The worker argued he had a right to be at work under the Fair Work Act and that his employer's direction to leave the premises was unlawful.
He also claimed the dismissal process denied him procedural fairness and an opportunity to properly respond to the allegations against him.
The case examined whether refusing to follow a direction to leave the workplace constituted serious misconduct warranting immediate dismissal, and whether the employer followed proper termination procedures.
The worker had been employed as an asset officer at a Catholic education organisation in Darwin since November 2007. In March 2024, he filed a general protections application that went to a conference before the Commission in April 2024. During this conference, a settlement was proposed where the worker would resign.
Initially, the worker cleared his desk, handed in his security pass, and left work. However, he later emailed his lawyer on April 19, saying: "I don't intend to agree to settlement... On this basis, I propose to return to work at the Catholic Education Office on Monday, 22nd April, and continue to progress towards proper consideration of the matter."
The worker then returned to work unannounced on April 22. The chief financial officer directed him to leave, which he initially refused before eventually departing after speaking with his lawyer.
On April 29, the employer scheduled a disciplinary meeting for May 7, stating in the letter that refusal to comply with lawful directions could result in termination. Instead of attending, the worker sent an email one minute before the scheduled meeting time.
During the hearing, when asked about his late notice, the worker testified:
"[I] had missed the bus. I had to get my writing through. I wasn't feeling great, so I just sent the email."
The employer found this explanation inadequate, noting that the worker never mentioned transportation issues in his email or initial submissions.
The worker maintained throughout the proceedings that he had a legal right to be at work. Under cross-examination, he stated: "I believe that employees have a right to be at work... Because the employee has the right to be at work... Section 340 of the Fair Work Act."
However, Commissioner Riordan noted: "I do not agree with [the worker's] view but the interpretation of the general protections provisions of the FW Act is a matter for the Court, not the Commission."
The employer argued that the worker's conduct in refusing to follow lawful instructions constituted serious misconduct. They also pointed to previous warnings the worker had received in 2020 and 2021 for failing to follow directions.
The Commission found that while the employer had grounds for concern, the summary dismissal was too harsh. Commissioner Riordan explained:
"I am not satisfied that the refusal to follow a lawful and reasonable direction provided [the employer] with a valid reason to terminate [the worker] for serious misconduct in this circumstance... I have no doubt that [the employer] was shocked and probably disappointed at [the worker's] return to work but to summarily dismiss him for this issue, in my view, is unjustifiable."
The FWC noted trust issues on both sides, stating:
"[The worker] is prone to misrepresenting the truth to his manager. When leaving work on 22 April 2024 [the worker] claimed that he was going home because he felt sick, not to comply with the direction of [the CFO]."
The Commission concluded:
"Even though reinstatement is the primary remedy under the FW Act... the required level of trust and confidence cannot be restored in this circumstance."
As a result, the FWC ordered the employer to pay five weeks' compensation plus superannuation, equivalent to the notice period the worker should have received under the Clerks - Private Sector Award 2020.
