The Full Bench of Fair Work Australia has upheld the decision of
Deputy President Hamilton to dismiss an unfair dismissal
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
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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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There is no protection for injured workers with a partial work capacity but the employer can't provide suitable duties.
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