In the recent case of Evans v Oxford Shop Pty Ltd (2022), the Federal Circuit and Family Court of Australia had to determine whether a direction by a fashion retail outlet for a full-time store manager to attend work at a different location in Perth was lawful and reasonable.

An employer has no general duty to act reasonably, but an order or direction that is lawful must also be reasonable. Whether a direction is reasonable depends on:

• the nature of the employment;
• what is commonplace or usual; and
• the terms of any applicable modern award or enterprise agreement.

In this case, the employer operated a number of stores. The employer ordered its employee, Ms Evans, to work at its DFP Perth Airport Store. Ms Evans refused. The employer considered the refusal as a repudiation of the employment contract that brought employment to an end.

Ms Evans’s employment contract stated that the “primary location” of her work would be “as directed”. The employer relied on this clause to make the direction to work at its DFP Perth Airport Store and treat refusal as a repudiation of the employment contract. Ms Evans claimed she had been dismissed, triggering an entitlement to notice and redundancy pay.

The Court noted the express term of the employment contract that Ms Evans work in a location as directed by the employer. There was no scope for an implied limitation on that clause; nor was there evidence that it had been varied subsequently by the conduct of the parties. If anything, the fact that Ms Evans had worked in several locations as directed was consistent with the express term.

The term meant that Ms Evans had to work as instructed or ordered by the employer. The Court rejected the argument that “as directed” meant the employer only had the power to issue one direction (i.e. that Ms Evans work at the Joondalup store), as the words were not “as initially directed”. The employer could assume that a contract term was mean to operate throughout the period of the contract’s operation.

Therefore, the direction for Ms Evans to work at the DFP Perth Airport Store was lawful. But was it reasonable?

In considering whether the direction was reasonable, the Court noted that for Ms Evans, travelling to the DFO Perth Airport Store would be an additional 57 minutes and 9 kilometres. The reasonableness of the additional travel and travel time, and whether the employee was required to “travel a distance” that is unreasonable, is to be assessed objectively against the total travel and travel time. The Court considered it was relevant that the mode of travel and the time that it took was a consequence of a personal choice made by Ms Evans not to have a driver’s licence, and therefore to not be able to drive to work (which would entail a journey of approximately 30 minutes).

The Court ruled that having to traverse 33 kilometres in a mid-sized city by public transport and perambulation for an hour and 43 minutes each way was not unreasonable.