The Full Bench of Fair Work Australia has upheld the decision of Deputy President Hamilton to dismiss an unfair dismissal application.
The employee for Australia Post had a poor employment record stretching back over his 20 years with the Corporation. He was eventually summarily dismissed for three reasons:
- He refused to comply with a new policy whereby vehicles would be loaded and unloaded using a forklift truck
- He had accepted unlabelled packages in defiance of a strict policy for only accepting labelled packages
- He had walked outside designated walking areas.
The employee did not deny his conduct and he accepted that his conduct was a refusal to perform specific directives given to him by his employer. The employee had several excuses for his conduct including that he was acting in accordance with a union ban for OHS reasons. The employee was the OHS Representative and the Deputy Shop Steward for the union.
Australia Post had previously told the employee that if he were to participate in the union ban on the loading and unloading using a forklift truck, it would be considered that he was participating in unprotected industrial action which may result in disciplinary action against him.
Deputy President Hamilton at first instance considered the evidence before him and found that he preferred the evidence of the corporation.
Further, he tested the dismissal against all the criteria in section 387 of the Fair Work Act 2009. He found that the company not only had a valid reason to dismiss the employee but that further, they had given him every reasonable opportunity to answer their concerns. In fact he found:
"Australia Post showed an almost exemplary patience in dealing with Mr Darvell. It repeatedly gave Mr Darvell the opportunity to put his case, responded to his stated concerns, and clarified and made clear the nature of the directions it was giving him"
The unfair dismissal claim was dismissed. The matter came before the Full Bench on appeal. The employee submitted that Deputy President Hamilton had erred in failing to find:
That he genuinely and reasonably believed that he was entitled on OHS grounds to refuse to unload his truck
That as a consequence, his refusal to follow a lawful directive was not a valid reason for his dismissal.
The Full Bench found that it was reasonably open to Deputy President Hamilton to find as he did and further that Mr Darvell's stated belief that he had OHS grounds to refuse to unload his truck was not genuine or reasonable.
The appeal was dismissed.
Implications for employers
Whilst some employees continue to state that they are not required to perform work which either they or a union deems to be unsafe, this case demonstrates that where it can be established that there has been genuine consultation and where an employee's concerns are not genuine, sustained refusal to carry out lawful and reasonable instructions will be valid grounds for dismissal.
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