This is an extract of our The Employee's Implied Duties document, which we sell as part of our Employment Law Notes collection written by the top tier of Monash University students.
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Topic 4: The employee's implied duties
? Introduction o A term should only be implied by law when it is necessary to ensure that the rights created by a K are not undermined Byrne
? Duty to obey lawful & reasonable orders (obedience) o General Test (Darling Island): If a command relates to the subject matter of the employment [ie falls within the scope of the contract] and involves no illegality, the obligation of the servant to obey it depends at common law on it being reasonable.
1. Is it illegal/unlawful? If so, it does not need to be obeyed
? Does it place them in physical danger?
? Does it require them to break the law? Kelly v Alford
2. If it is legal/lawful, is it reasonable?
? What is reasonable is not determined in a vacuum, but depends on Darling Island:
? the nature of the employment
? its established usages
? common practices and any instrument affecting it e.g. EA, MA or KoE
? General principle: An employee can only be expected to perform tasks or comply with instructions which 'properly ascertain' to their job e.g. within the scope of their contract Royall
? Orders are likely to be unreasonable if they completely change the nature of the job or compromise someone's ability to do their original job e.g. library teaching having to teach English classes Redbridge
? Has it been common practice? If so, more likely to be reasonable e.g. teachers covering classes Sim v Rotherham MBC
? However, employers do have flexibility in varying an employee's duties, provided they remain within the scope of the original job e.g. Cresswell v Inland Revenue
? Reasonableness and Managerial Authority
? Managerial prerogative: right of an owner of the business or a manager to have a substantial say in how the business is run and what employees do.
? Is it reasonable?
o Not what the reasonable person would think, but through the perspective of owners and managers, employers have a substantial discretion to require things of employees for the business to operate effectively. o The decision in Cwth Bank v Barker suggests that the exercise of managerial power is not subject to any general obligation to act fairly and reasonably. Nevertheless, it appears that any powers that explicitly require the exercise of a discretion must be at least exercised honestly, not arbitrarily or capriciously.
? Courts and tribunals have been willing to take a broad view of managerial authority. It appears to be lawful and reasonable to: o Impose dress standards or appearance standards on employees who deal with customers ATC v Hart o Order a senior employee not to make public comments about the employer's business Lane v Fasciale
o Implement a computerised system for a task, so long as the nature of the job stayed the same Creswell v Board of Inland Revenue o Create a policy regarding alcohol outside work time if the employer has a legitimate interest in the conduct of an employee's private life Kolodjashnij o Direct an employee to use a time clock to record the start and finish of their shift Pettet v Readiskill o Require an employee to undertake a medical examination in order to determine fitness for work AIPA v Qantas 2014 But there are limits to this power o For example, the inconsistent application of a dress or appearance standard may expose an employer to the risk of an unfair dismissal claim, even if they had the power to impose the standard Woolworth v Miller 2006
? Duty of co-operation and proper conduct (i.e. no misconduct) o Employees are generally obliged to conduct themselves properly whilst at work and to co-operate with the employer (these duties overlap with the duty of fidelity). o General test: have they wilfully disrupted the employer as he goes about his business, acting contrary to the spirit of co-operation Sec of State v ASLEF
? Be careful though as compare legitimate industrial action to misconduct o Examples of misconduct:
? Insolence towards a supervisors Farley v Lums 1917
? Offensive abuse of a subordinate or co-worker Bahonko v Sterjov 2007
? Disparaging the employer's business R W Jaksch & Associates v Hawks 2005
? Assaulting another workers Quinn v Australian Stevedoring Industrial Authority
? Making private use of employer's property and personnel Concut v Worrell 2000
? Accepting a bribe or secret commission Boston Deep Sea Fishing v Ansell 1889
? An executive entering into legally questionable salary and loan arrangements Downer EDI v Gillies 2012
? Working 'to rule' as part of a disruptive campaign of industrial action Secretary of State v ASLEF 1972
? Inciting other employees to take unlawful industrial action Cicciarelli v Qantas 2012
? Failing to answer questions truthfully, provided the questions are fair and reasonable Streeter v Telstra 2008
? Even if the questions regard private life.
? Failing to disclose the fact that a subordinate has engaged in some form of misconduct Turner v Carpet Call 1994
? Bad-mouthing employer on social media Dover-Ray v Real Insurance o Conduct out of working hours
? It is clear that in certain circumstances, employment may be terminated because of private conduct, but such circumstances are limited. Take into account: Rose v Telstra Corp
1. Conduct must be such that viewed objectively likely to cause serious damage between relationship of employer and employee; or o The conduct must be of such gravity or importance as to indicate a repudiation of the employment contract Kolodhashnij
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