What If An Employer Gives Unlawful Directions?

Most employees are accustomed to following their employer’s direction without question. While employees may not welcome their employer’s every instruction, they usually have no problem following them. However, in rare instances, an employer may direct an employee to do something illegal at the risk of losing their job. This article explains an employee’s obligations to follow lawful instructions from their employer and their right to refuse to follow unlawful directions. This article also considers an employee’s legal protection if they report illegal activity in the workplace.

Lawful And Reasonable Direction

Employees in Australia must comply with their employer’s reasonable and lawful directions. This is an implied obligation of every employment relationship. If an employee fails to comply with these directions, this may constitute serious misconduct under the Fair Work Regulations 2009. The employer can take disciplinary action and even terminate the worker’s employment without notice (summary dismissal). However, an employee should not blindly follow every instruction from an employer as the employer may have given unlawful directions.

Unlawful And Unreasonable Directions

An employee can refuse to follow unreasonable or unlawful directions. Obviously, this includes any action that breaches a state, territory or federal law. For instance, if an employer asks the employee to illegally dispose of hazardous waste, the employee has an absolute right to refuse this unlawful direction. An employee who is given an unlawful direction is in an unenviable position, as negative consequences may flow from both complying and refusing to comply. It can feel like a lose-lose situation, but an employee should never comply with an unlawful direction.

Identifying Illegal Directions

A difficulty may arise if an employee is unsure whether a direction is illegal. Some conduct is clearly illegal, but other instructions may be merely unprofessional or immoral. For instance, if an employer gives a direction to destroy data, this may be a perfectly reasonable instruction or a breach of data preservation laws. An employer’s billing practices may constitute standard industry practice or fraudulent over-charging.  An employee should consider their own legal exposure to be the paramount consideration. If in doubt, the employee should seek clarification. Professional organisations can be a valuable source of guidance on standard practice in the industry.

What About Unreasonable Directions?

The employer also cannot require an employee to undertake work outside their abilities or qualifications (such as using equipment they are not legally permitted to operate). An employee can always refuse to act in a way that contravenes health and safety rules or otherwise risks themselves or others.

An employee should raise their concerns over an employer’s unlawful or unreasonable direction according to the company’s internal procedures and policies. These policies are often contained in the employee’s enterprise agreement or award. In the rare event that there are no policies, awards or agreements that apply, the employee should contact their union or an employment lawyer.

What Happens If I Refuse to do something illegal?

An employer cannot treat an employee differently from other employees for refusing an unlawful direction. Under the Fair Work Act 2009, an employer cannot bully the employee or terminate their employment for refusing to engage in illegal behaviour. If the employee faces this type of inappropriate conduct, they can escalate the matter to the Fair Work Commission. On the other hand, if an employee complies with unlawful directions, they are personally responsible for their behaviour and face possible criminal charges.

Whistleblower Laws

State and federal laws in Australia protect an employee from retaliation if they report illegal activity in a workplace. These laws protect a whistleblower who reports their employer for misconduct or illegal activity. For example, employees can report anything from fraudulent accounting practices to environmental dumping. An employee can report corporate misconduct through established reporting avenues, such as to the company’s directors, ASIC, APRA or dedicated whistleblower authorities.

There is state and federal law that protects employees who bring the issue to the attention of government agencies. Some whistleblower laws protect employees who report misconduct to upper management. In Bond v Wynbob (2017), an employee was fired from her job at a carpet franchise after reporting her boss’ drink driving at work to the franchiser. The franchisee argued that she had other alternatives, and he had lost his franchise due to her disparaging comments. The Fair Work Commission found that the employee had been unfairly dismissed because she had made the report under the company’s whistleblowing provisions.

You should seek legal advice immediately if your employer gives you an unlawful direction or you learn of illegal activity at work. It is important for you to understand that you are legally responsible for your actions even if you are following your employer’s directions.