Insubordination – Can employees ignore a direction of an employer?
Employees are expected to comply with lawful and reasonable directions of their employer, however, it is important that the direction is clearly and unequivocally communicated to the employee.
In the recent decision of Con Margaritis v Safiery Pty Ltd [2024] FWC 1844, the Fair Work Commission (FWC) concluded that the dismissal of an employee for not adhering to a request to call and discuss work related matters daily with his boss was harsh, unjust and unreasonable.
Facts
On 21 February 2023, the Applicant, Mr Margaritis commenced employment with the Respondent, Safiery Pty Ltd (Safiery), as a General Manager in the Respondent’s Victorian facility. On 19 December 2023, the Chief Executive Officer of Safiery (the CEO) raised concerns of Mr Margaritis’ performance (including his communication with customers) over telephone and asked him to call every day thereafter.
Despite this request, Mr Margaritis did not call the CEO, but did exchange some text messages sporadically. After the Christmas shut down, Mr Margaritis returned to work on 11 January 2024 and continued with his normal duties, but continued not to call the CEO daily, despite an email reminder to do so on 6 February 2024.
On 19 February 2024, Mr Margaritis presented for work and found he was locked out of his work email. He then received a notification that his access had been removed. Shortly after, Mr Margaritis received an email advising his employment had been terminated effective immediately following ‘a series of documented incidents of insubordination’ with specific reference to Mr Margaritis’ failure to call and discuss work matters on a daily basis.
Mr Margaritis subsequently filed an unfair dismissal application in the FWC, claiming that there was no valid reason for the termination of his employment related to his capacity or conduct.
Decision
Considering the evidence of both parties, the FWC was not convinced that the CEO provided Mr Margaritis with a clear direction to be interpreted as a lawful direction that he was required to comply with or face disciplinary action. Rather, the request appeared to be an informal request. Further, the FWC noted that if the requirement to call every day was a lawful direction with which Mr Margaritis had to comply or face disciplinary action, the CEO would not have waited until 19 February 2024 to take steps to address the supposed ‘insubordination’.
Whilst the FWC did accept that Mr Margaritis did engage in some misconduct and communicated in a tone which did not reflect a relationship of respect, subordination or trust, these instances did not justify dismissal.
The FWC also noted that Mr Margaritis was not provided any written direction or clarification of the request, warning of unsatisfactory performance prior to being notified of his dismissal, or procedural fairness by way of any opportunity to respond in writing prior to the notice of termination.
Accordingly, the FWC determined that there was not a valid reason for the dismissal and that the dismissal was harsh, unjust and unreasonable
Given the breakdown of the employment relationship, Mr Margaritis did not seek reinstatement but instead sought compensation for the at least 12 months he intended to continue working for Safiery, however the FWC determined that Mr Margaritis was instead likely to have remained employed with Safiery for a further four months and slightly reduced the sum of the compensation on the basis of Mr Margaritis’ misconduct. Accordingly, the FWC awarded Mr Margaritas the gross sum of $29,999.99, plus superannuation.
Take Home Messages
If an employee is not meeting the required standards of performance, this may justify termination of employment, but a procedurally fair process must be followed first. Employees should be afforded the opportunity to discuss any identified issues and work towards resolving them.
Importantly, if employers seek to rely on a failure to comply with a request as the reason for dismissal or other disciplinary action, the employee should be made aware that the request is a lawful direction and that failure to comply with it may result in disciplinary action.
Should you have any questions in relation to this article, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au or Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au.
