In doing so, executive didn't comply with management's order: Is it unfair?
The Court of Appeal of New South Wales recently dealt with a case involving the termination of a senior executive's employment in the public sector.
The case highlighted several important issues in employment law, including the lawfulness of directions given to employees, procedural fairness in termination decisions, and the authority to make such decisions within government departments.
The worker was employed as a senior executive in a state regulatory authority, which was part of a larger government department.
The case revolved around his handling of a subordinate employee who was working remotely from overseas.
Background of the case
In August 2021, the subordinate employee had alleged to the worker that her spouse had been verbally and emotionally abusive toward her and her children.
Shortly after, the subordinate employee informed the worker that her parent in the overseas country had suffered a stroke, and she was applying for a travel exemption to go there.
The worker approved the subordinate employee working remotely from overseas, initially agreeing to a three-month period.
However, in late 2021, the government department introduced a policy limiting access to its systems from international locations. This policy change became a central point of contention in the case.
The directions and non-compliance
The worker's direct manager had given him three separate directions to stop the subordinate employee from working remotely from overseas. These directions were given orally on 17 January 2022, 3 February 2022, and 4 March 2022. The reasons behind these directions included concerns about cyber security risks and compliance with departmental policies.
Despite these directions, the worker did not immediately comply. On 9 March 2022, the manager sent an email to the worker, stating:
"This morning you told me that [the subordinate employee] continues to work for [the regulatory authority] while [overseas]. I re-iterated my previous repeated requirement that this stops and asked you to today send [the subordinate employee] an email explaining she is not permitted to work overseas."
The worker's response and actions following these directions became the basis for the misconduct allegations against him.
The termination decision
Following an investigation into the worker's conduct, the department decided to terminate his employment. The termination was based on a finding of misconduct, specifically that the worker had failed to follow lawful and reasonable directions from his manager.
On 29 March 2022, the worker received a letter notifying him that misconduct proceedings had been commenced against him. The allegations centred on his failure to follow the three directions given by his manager.
The worker provided a response on 4 April 2022, where he did not expressly deny the allegations but emphasised his duty of care to the subordinate employee and her children, citing potential domestic violence concerns if they returned to Australia.
After considering the worker's response, the department proceeded with the termination. The first termination decision was communicated on 12 July 2022, giving the worker an opportunity to resign.
When the worker challenged this decision in court, a second termination decision was made on 30 November 2022, this time without the opportunity to resign.
Court’s findings
The worker challenged the termination decisions on several grounds, including claims of legal unreasonableness, denial of procedural fairness, unlawfulness of the directions, and lack of authority to make the termination decision.
The court examined each of these arguments in detail, ultimately finding that the original termination decision was valid.
However, the court did identify procedural issues with the second termination decision, although it found no utility in granting relief on this point given the validity of the first decision.
This case underscores the complexities involved in managing remote work arrangements, especially across international borders, and the importance of clear communication and adherence to proper procedures in employment decisions.
It also highlights the challenges that can arise when balancing organisational policies with employee welfare concerns.
