An employee who was summarily dismissed after refusing to comply  with his employer’s directions has lost his unfair dismissal claim.1

Facts

Scott Wilson was employed as a fly-in fly-out worker at the Gorgon Project at Barrow Island off Western Australia by Leighton Contractors Pty Ltd (Leighton).

Mr Wilson made complaints of harassment, bullying and intimidation and was directed to contact Leighton’s Employee Relations Advisor about his concerns.  He was also clearly directed not to email external organisations,   such as the Gorgon Project joint venture company which was not his employer,  to try and air his grievances.

Mr Wilson repeatedly disregarded this direction and was subsequently issued with a written warning following his failure to follow continual instructions and to abide by Leighton’s Dispute Resolution Procedure.  Mr Wilson then emailed Leighton advising he wished  to make a complaint against the two Leighton’s Employee Relations Advisers that he had been dealing with.

At a meeting arranged to discuss his complaints, Mr Wilson became angry and agitated, making derogatory comments about the Leighton representatives present and labelling them “all incompetent”.He then stormed out of the meeting, saying, “This will be going to court and you can talk to the lawyers”.Mr Wilson was directed to attend a recommencement of this meeting but refused to do so.

Several days later, Leighton terminated  Mr Wilson’s employment summarily for  his failures to follow reasonable and lawful instructions. After being given the letter  of termination, Mr Wilson yelled, “see you in f***ing court you red headed c**t”.

Decision

The Fair Work Commission held that employees are under obligations to carry out lawful instructions, saying:

“It would be intolerable for employees to consider attendance at meetings requested by their employer to be at their discretion.  It would also be intolerable for employees to consider it appropriate behaviour to storm out of meetings, at a time of their own choosing, rather than conclude a meeting properly.  It is also unendurable for an employee, after being notified of their dismissal, to call the employer’s representative a ‘c**t’ and consider it should go unnoticed.”

Commissioner Cloghan said that Mr Wilson was the “driver” on the road which eventually led to a crash and the termination of his employment.  His behaviour over a long period of time became inconsistent with his contract of employment.  Mr Wilson’s conduct was not merely a matter of refusing to adhere to policies and procedures, but rather was a refusal to comply with lawful instructions to the extent that it led to “rank insubordination”.

Mr Wilson had engaged in a course of disobedience that left his employer with no option (after issuing a final written warning) but to dismiss him.

Bottom line for employers

This case shows that employers can validly terminate employment where employees fail to follow lawful and reasonable directions, so long as fair processes are followed.

Refusal to carry out a lawful and reasonable instruction (which is inconsistent with the employee’s contract of employment) can constitute serious misconduct and can justify summary dismissal.2

Before dismissing an employee for disobedience, ask yourself:

  • How serious is the disobedience?
  • What is the employee’s length of service and previous record?
  • Have you been consistent in dealing with similar situations involving other employees?
  • Have you warned the employee that disobedience is grounds for dismissal and given them a chance to improve their behaviour?

Employers should also bear in   mind that an employee’s conduct after dismissal is relevant to the employee’s credibility as a witness.3

While not an issue in this case, employers may also be interested  to know that they can rely on facts revealing misconduct that were not known to them at the time of the dismissal, when defending an unfair dismissal claim.4