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July 2019

When are directions unlawful and unreasonable?

When are directions unlawful and unreasonable?

Jeremy Lee v Superior Wood Pty Ltd (2019)

The Case

Superior Wood Pty Ltd (Superior Wood) introduced a site attendance policy. This made it compulsory for employees to provide their fingerprint to authenticate their right to enter the company’s premises. Superior Wood directed its employee Mr Lee to comply with the policy. Mr Lee refused.

Superior Wood thereafter terminated Mr Wood’s employment for failing to follow a lawful and reasonable direction.

Mr Lee filed an unfair dismissal application.

Mr Lee’s contract of employment stated as follows:

“2.2 Various policies, procedures and work rules also exist for the safe operation of Superior Wood Businesses …

“2.3 You are required to comply with the conditions of employment as identified in the … Policies, Procedures and Work Rules at all times…

“2.4 A copy of the … policies is also attached.”

The Verdict

The Fair Work Commission (FWC) found that:

  • Mr Lee’s contract of employment did not oblige him to comply with the site attendance policy, as it was not specifically referenced in the contract of employment and was not in existence at the time he was employed;
  • there was “no evidence that Mr Lee agreed to vary his contract of employment to incorporate the policy as one of its terms. His refusal to comply with its terms is evidence to the contrary”;
  • the direction by Superior Wood for Mr Lee to comply with the policy was therefore not lawful or reasonable; and
  • the termination of Mr Lee’s employment was unfair.

The Lessons

In light of this decision:

  • ensure your business has a compliant privacy policy that sets out what employee personal information may be collected, and how and when it may be collected;
  • obtain the employee’s consent to the collection and use of such information;
  • include in each employee’s contract of employment a clause requiring compliance with the employer’s policies, as amended and varied from time to time; and
  • provide copies of the policies in place and any new policies (when introduced), and have the employee confirm they have read and agree with the policies.

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