Australia, Fair Work Commission, 5 July 2022, [2022] FWC 1739
Case overview
Country
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Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
Outcome of the decision
General Summary
The Applicant made a claim under the Fair Work Act 2009 (Cth) that his dismissal from his employment was unfair. The Applicant was a van driver employed by the Australian Postal Corporation (the Respondent) to deliver mail and parcels. He was the subject of a client complaint owing to his failure to wear a mask, or use the State Government’s COVID-19 ‘check-in’ app when delivering to the client’s store. Following this complaint, the Respondent directed the Applicant not to make further deliveries to this store. Despite these directions, the Applicant attended the store on two further occasions, including after being suspended from duties. As a result, he was dismissed from his employment. The Applicant sought a declaration that his dismissal was unfair pursuant to the legislation, reinstatement and compensation. Tribunal found the Applicant had not been unfairly dismissed.
Facts of the case
The Applicant had been a van driver for the Respondent for 32 years. The Respondent received a complaint from a client, an electronics store, that the Applicant had failed to wear a mask while delivering to the store, and failed to use the State Government’s COVID-19 ‘check-in’ app while at the store. The complaint also stated that the Applicant had engaged in inappropriate discussion with the store’s employees about COVID-19 conspiracy theories. Following this complaint, the Applicant was asked by the respondent not to deliver to this particular client, and was instructed not to approach the client about the complaint. Against these directions, the Applicant returned to the store and made deliveries, and also asked questions of staff at the store directed at finding out who had made the complaint against him. Following this visit, the client made a further complaint about the Applicant’s behaviour. As a result of this further complaint, the Respondent suspended the Applicant. The Respondent instructed the Applicant this meant he would not make deliveries, and was not authorised to use the delivery van. Against this direction, the Applicant took keys to the delivery van and drove away. The keys were then taken back from the Applicant when he arrived at another delivery centre operated by the Respondent and was again informed that he was suspended from his employment. Following this, the Respondent then again returned to the client to discuss the complaint against him.
The Applicant claimed that the directions made to him by the Respondent were incorrect, because he had a medical exemption against wearing a mask. The Applicant claimed that he had never been asked to use the check-in app at the store, as he was only making deliveries at the rear of the store and not entering the store. He also denied discussing conspiracy theories with the store’s staff, but stated that he may have engaged in legitimate discussion about current affairs.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Private collective
Type of procedure
Reasoning of the deciding body
The Tribunal decided the matter having regard to the relevant provisions of the Fair Work Act 2009 (Cth). When considering unfair dismissal, The Tribunal must have regard to Section 385 of the Fair Work Act 2009 (Cth) which provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy
In relation to whether the dismissal was harsh, unjust or unreasonable the Commission had reference to Section 387 of the Fair Work Act 2009 (Cth) which provides that the Commission must take into account whether the alleged conduct occurred and whether it justified termination. The Commission considered evidence the Applicant refusing to follow the employer’s directions.
The Commission stated that employees must follow the lawful and reasonable directions of their employer. The Commission found that the direction that the Applicant not return to the client’s premises and engage in discussion about the complaint was both lawful and reasonable.
The Applicant “exacerbated” the situation by disregarding the direction not to return to the client’s premises after he was officially suspended from work. In totality the Commission concluded that the failure to follow lawful and reasonable directions of his employer constituted misconduct and was a valid reason for his termination.
Conclusions of the deciding body
The Commission concluded that the Applicant’s dismissal was not harsh, unjust or unreasonable and was due to misconduct in failing to comply with his employer’s reasonable and lawful directions. The Application was dismissed.
Fundamental Right(s) involved
- Freedom of expression
- Right to bodily integrity
