Fair And Reasonable Termination Of Employment - When The Employer Gets It Right

When is it not harsh, unjust or unreasonable to sack an employee with family responsibilities?

A recent unfair dismissal case (Webb v Australian Customs Service [PR948530] 28 June 2004) demonstrates that if the employee refuses to comply with a reasonable direction to attend for work, this will be a valid reason for termination, even if the employee's refusal was because of family responsibilities.

The termination by the employer in this case was also found not to be harsh unjust or unreasonable.

Mr Ashley Webb was a Customs Level 3 officer employed in Cairns under the Public Service Act 1999. His promotion to Level 3 involved his acceptance of a three year fixed term assignment to Cairns scheduled to end in February 2001. His employment was terminated on 19 January 2004 for breach of the APS Code of Conduct because he refused to comply with Customs' lawful and reasonable direction that he report for duty in his home port of Brisbane.

Mr Webb lodged an unfair dismissal claim alleging that Customs had failed to meet its obligations to him in relation to his family responsibilities.

Mr Webb's return to his home port of Brisbane at the end of his three year fixed term assignment was a requirement of Customs' Term Transfer Policy. In September 2000, Mr Webb applied for a two year extension in order to remain with his children in Cairns following the breakdown of his marriage. A one year extension was granted to February 2002.

In September 2002, Mr Webb sought a further extension to remain in Cairns which was rejected. He then sought to revert to Customs Level 2 by consent. His reversion request was not approved. That decision was affirmed on primary review, and on secondary review by the Merit Protection Commissioner.

In July 2003, Customs directed Mr Webb to report for duty in Brisbane but he did not do so. The parties sought the assistance of the Commission but no settlement was reached by September 2003.

During the negotiations, Customs attempted to meet Mr Webb's main priority of remaining in Cairns with his children in his Customs job by offering him ongoing assignment at Customs Level 1, permanently based in Cairns and with scope for promotion to other positions, with salary at the top of the range for Customs Level 2 for a non-reduction period of 12 months.

In the alternative, Customs offered Mr Webb a move to Brisbane immediately as Level 3, while continuing to assist him to pursue job opportunities with other agencies in Cairns and with reunion airfares for the first 12 months.

Mr Webb rejected these offers.

Customs then offered ("the final offer") Mr Webb a reduction by consent to Customs Level 2 with assignment to Brisbane from 17 November 2003 to 16 November 2004. The Brisbane job would be "out posted" to the Cairns District Office. From 17 November 2004, Mr Webb would be reduced to Customs Level 1 on ongoing assignment in Cairns. This meant Mr Webb would remain in Cairns with his children at Level 2 for 12 months after which (if he had not found alternative employment) he would reduce to Level 1.

Mr Webb rejected this proposal.

Mr Webb then refused to comply with a direction to attend for duty in Brisbane on 1 December 2003 and was reduced in classification to Level 2 in the Brisbane-based job with salary at the top of the range.

Mr Webb then refused to comply with a further direction to attend for duty in Brisbane at Level 2 and his employment was terminated.

The Commission considered the "reasonableness" of the direction for Mr Webb to relocate to Brisbane against Mr Webb's acceptance of the terms of his promotion to Level 3 in the context of the "final offer".

Consistent with the "final offer", Mr Webb was required to sign a "consent" to ongoing assignment to Level 1, to take effect on 17 November 2004. The "consent" was the basis for Mr Webb's rejection of the final offer because he refused to sign it.

The Commission found difficulty in reconciling Mr Webb's conclusions about the final offer and the facts because Mr Webb testified that his primary concern throughout was to remain in Cairns so that he could be with his children. The final offer met that concern while also allowing Mr Webb to remain in employment with Customs.

Accordingly, the Commission found that on any fair analysis, Custom's offer was fair and reasonable as:

• it met Mr Webb's primary concern that his children came first; and
• it gave him exactly what he wanted for a period for 12 months, this being a more than reasonable period in which to secure alternative employment - the only downside was that (if necessary) he would revert to Level 1.

The Commission also considered it reasonable for Customs not to increase its Level 2 staffing numbers in Cairns solely to accommodate Mr Webb, while ultimately agreeing to release him from his obligation to relocate to Brisbane.

Accordingly, the Commission found that Customs had met obligations to Mr Webb in relation to his family responsibilities:

"The respondent still has a service to run and budgets to meet. The family responsibilities of employees are important matters to be considered by employers, however, they are not the only matters that need be considered. In the Commission's view the respondent considered the competing interests and in the final offer produced a balance that was about right. The applicant acted unreasonably in refusing the respondent's final offer."

As Mr Webb refused to comply with a reasonable direction, the Commission was satisfied that there was a valid reason for the termination of his employment and that it was not harsh, unjust or unreasonable.

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.