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

Last Updated: 17 November 2004
Article by Merrilyn Sernack

Key Point

  • 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.

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.

The Webb case

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.

The facts

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.

A valid reason?

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.

Family responsibilities

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.