May 2016

Can you dismiss an employee just because they are disobedient?

As employers and managers, you need to issue directions, implement systems and trust that they are followed. Without obedience, chaos may follow.  So, where an employee disregards your lawful and reasonable direction do you have the right to terminate their employment or will it be unfair to do so?

Recent decisions by the Commonwealth and NSW industrial commissions show that continual or serious disregard for management’s requests and processes can justify dismissal.

Following a supervisor’s “advice” when it conflicts with the employer’s direction

In the first decision, two long-serving council employees were dismissed after 28 years’ service each. Both employees, Mr Krstic and Mr Zreika, held leadership roles in the council’s concrete crew.

Another employee, Mr Joe Borg, supervised the crew. He authorised a job and finish system for weekend overtime, known as ‘Joe’s Rules’, where employees were free to leave work when they completed their set tasks. Under Joe’s Rules, employees were still paid for a full shift of eight hours overtime even where they didn’t actually work them.

In May 2014, council outlawed this practice and gave a presentation to staff about the need to record time worked accurately and honestly.

Mr Borg told Mr Krstic and Mr Zreika it was okay to continue to follow Joe’s Rules and the three men continued implementing them. When caught out, Mr Krstic said he was simply following Joe’s Rules. Meanwhile, Mr Zreika justified his behaviour saying, “It’s been this way for more than 20 years”. All three men were dismissed.

Mr Krstic and Zreika brought a claim in the NSW Industrial Relations Commission arguing that their dismissal was ‘harsh, unfair or unjust’. The Commission ruled that it wasn’t.

The Commission noted that Mr Krstic and Mr Zreika were told to stop the practice, yet they continued to be dishonest. Mr Borg’s instructions to the men were “coincidental to their personal responsibility to be honest with their employer”.

“[I]t is not good policy, reasonable or fair to punish an employer for trusting in its employees,” it said.

The Commission concluded Mr Krstic and Mr Zreika had engaged in serious and wilful misconduct, justifying dismissal. Even their lengthy service and otherwise good employment record could not save them.

Krstic & Zreika v Marrickville City Council [2015] NSWIRComm 39 (3 December 2015)

A pattern of behaviour that counted as disobedience

Ms Gamble was a Librarian with 29 years’ service when she was dismissed.

In 2014, she received a first and final warning, for making changes to the library management system, unauthorised use of a council vehicle for personal use, not attending work as rostered and swearing at her manager. Then, in January 2015, there were three more incidents:

•    leaving work early without approval,

•    using her manager’s computer without permission, and

•    returning 30 minutes late from lunch.

Ms Gamble said the allegation of returning back late from lunch was trivial and it did not impact on any customers. She also said she had used her manager’s computer because it was the only one switched on at the time.

But the Fair Work Commission found that while the latest incidents weren’t significant of themselves, “they reflect a pattern of behaviour which suggests that Ms Gamble thought that she could effectively do as she pleased.” These later incidents were “the straw that broke the camel’s back”.

The bigger picture was an employee that had little regard for management and her employer. Her dismissal was not unfair.

Gamble v Monash City Council [2016] FWC 85 (6 January 2016)

What this means for you

We all know the employee who adopts their own way of doing things, runs their own game and views any variation they adopt to business practices as ‘no harm, no foul’ so long as they get the job done. They niggle at managerial directions and provide a resistance (blatant or subtle) that makes simple management difficult and frustrating.

Too often, management or supervisors tolerate the behaviour rather than create conflict, often for fear of being accused of bullying. The employee may ‘feel’ protected because of their experience, service or position in the organisation. Dismissal, it is believed, will always be seen to be ‘harsh’.

As the two above recent decisions show, that’s not necessarily the case.

How to deal with a disobedient employee

Before you rush in to take action over a disobedient employee remember that, except in cases of serious disobedience or dishonesty, it’s always best to discuss their actions with them.

Tell the employee immediately that they risk dismissal if their disregard of instruction continues. If they continue to show contempt, or do as they please, then you may warn again or consider dismissal.

After all, if the employee continues to disobey then you can confidently take tough disciplinary action – so long, of course, that the direction disobeyed is itself reasonable and lawful.

Author: James Mattson