Employees’ obligations to follow reasonable and lawful directions at work
By now, most of us will have read the stories, or at least the headlines, about a chef who claimed he was unlawfully dismissed in circumstances which included his repeated refusal to put pineapple on a pizza (in Queensland!) because it was “an insult” to his culture. Whatever your views on fruit on pizza (for the record, I’m a fan), the case has sparked plenty of discussion about an employee’s obligation to follow reasonable and lawful directions. That’s despite the decision having very little to say on the matter. Chef Davide Tamburella filed his general protections claim out of time, so the Commission addressed the delay rather than examining in detail the merits of his dismissal (or Hawaiian pizza).
The obligation of an employee to obey the reasonable and lawful directions of their employer lies at the heart of the employment relationship and is one of the distinguishing features of an employment contract from other commercial agreements. However, it can be contestable, and came to the fore in the context of vaccine mandates during the COVID-19 pandemic. The case law tells us that, for an employer to rely on a failure to follow directions as a basis for dismissal, those directions must be both reasonable and lawful. This context is important as at common law, a wilful refusal to follow reasonable and lawful directions can justify summary dismissal. Under the Fair Work Act 2009, it can be a valid reason for dismissal, and the Fair Work Regulations 2009 treat it as serious misconduct (reg 1.07(2)(e)).
In a FWC Full Bench decision involving vaccine mandates in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059; 310 IR 399, the Commission noted that the seminal decision concerning the requirement of employees to follow their employer’s lawful and reasonable directions is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday 50 (Darling) in which Dixon J summarised the common law position as follows:
‘Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.
In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.’
The duty is not unconstrained however and the boundaries of the obligation to obey often arise in the context of out of hours conduct, and increasingly social media activity. In McManus v Scott-Charlton (1996) 70 FCR 16; [1996] FCA 904, Justice Finn stated that employment “does not entail the total subordination of an employee’s autonomy to the commands of the employer” and adopted the observation that:
“A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.”
What is reasonable in any particular case will depend on the circumstances and the nature of the employment. Employees have been found to have been lawfully disciplined or dismissed in cases where they refused to:
Attend for work clean shaven - Felton v BHP Billiton Pty Ltd [2015] FWC 1838
Remove facial piercings- Woolworths Ltd (t/as Safeway) v Brown PR963023 (AIRC Full Bench, 26 September 2005)
Attend an independent medical examination (in one case, the direction to attend an IME followed a refusal by the employee to wear a gold waistcoat - Bletas v The Star Entertainment Qld Ltd [2019] FWC 2792)
Undergo drug and alcohol testing -Stacey v Mondelez Australia Pty Ltd t/a Mondelez International [2024] FWC 1701; and
Return to the office - Mr Richard Johnson v PaperCut Software Pty Ltd [2026] FWC 17.
Pineapple on pizza will keep dividing the country but an employee’s duty to follow a reasonable & lawful direction shouldn’t. In my view a direction to a chef to meet a customer’s request for tropical and delicious fruity pizza is clearly both lawful and reasonable in the circumstances, and it is worth remembering that if a direction relates to the job and is lawful and reasonable in the circumstances, the employee is expected to follow it, whatever their views on fruit.
If you have a question about what employees can or can’t be directed to do in the course of their work, please don’t hesitate to reach out to discuss.