Recently, approximately 50 Metro train drivers were stood down after refusing to drive on the new tracks between South Yarra and Hawksburn. The train drivers claimed that they had not been adequately trained to drive on the new tracks and posed a risk to their health and safety if required to do so. While the matter is currently being heard in the Fair Work Commission, many commuters are experiencing major delays in their travel and left wondering if they can also refuse work if they believe the conditions are not safe.
EMPLOYEE’S IMPLIED DUTY
Under Australian Common Law, employees have an implied duty of obedience and cooperation within their employment relationship. This means that it is an employee’s duty to obey an employer’s lawful and reasonable direction. However, an employee would not be required to carry out an employer’s request if it is either:
- unlawful;
- unreasonable;
- outside the employee’s qualifications, ability or skillset; or
- the request would cause serious or imminent risk to employee health or safety.[1]
The court determines the definition of ‘reasonable’ on a case by case basis and considers the circumstances that led to the request being made and how the request was made.
It is important to note that in circumstances where an employer’s request was reasonable and lawful and an employee refused to carryout their implicit duty, the employee may be subject to summary dismissal. An example of this is seen in the case of Powell v Hunter Water Corporation.[2] In this case, the employer requested an employee to transport a defective vehicle for servicing. The employee refused the request and continued to drive the defective vehicle between work locations and was summarily dismissed by his employer. In the unfair dismissal hearing, Commission Stanton held that there was a valid reason for dismissal, and it was not unfair or unreasonable.[3]
EMPLOYER’S IMPLIED DUTY
Employers also hold implied duties. This includes the duty to pay employees their agreed rate of pay, cover expenses for legitimate costs incurred in the course of work and take reasonable care for the safety of their employees.
This means that it is an employer’s duty to provide a workplace which is free from any risk to the health and safety of their employees. In the circumstances where an issue concerning health or safety arises at a workplace and it is not resolved within a reasonable time, an impartial inspector may be arranged to enquire into the issue.[4]
If found that the employer had breached their implied duty, it would be reasonable for the employee to refuse the hazardous and unsafe work.
Additionally, it is unlawful for an employer to treat an employee adversely because that employee had made complaints regarding the workplace safety. If you believe that your employer is treating you adversely for those reasons, please contact us on (03) 9650 4555.
[1] The Fair Work Regulation 1.07(2)
[2] Powell v Hunter Water Corporation [2012] FWA 6938
[3] The employee in this case had received multiple warnings prior to the dismissal which related to the employee’s conduct.
[4] Occupational Health and Safety Act 2004 (Vic) s 73; s 74