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Dismissed for disobeying direction, worker wins 24K

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All employees have had to deal with weird, annoying, or wrong instructions from superiors. And all employees just have to follow them. Right? Wrong! Employees are not slaves and are allowed to refuse certain directions. Depending on its contents.

Worker dismissed for not taking trash out wins 24K

A Sydney dance instructor who was dismissed for disobeying direction of not taking the rubbish out has been vindicated by the Fair Work Commission. The instructor was accused of failing to obey his employer’s direction and complaining about it in front of coworkers. 

The employer told him he could stay in his job if he stopped complaining in front of others. Or, he could go home and be instantly dismissed. Because he chose the latter option, the employer argued to the Fair Work Commission that he had resigned. But as you’ll read later in this article, this argument did not hold up at the unfair dismissal hearing.

Following your employer’s directions: What the law says

Before we get into this case, let’s look at what Australian employment law says about following directions from your employer. Generally, workers are required to comply with lawful and reasonable directions made by their employer. This obligation is implied in all employment contracts or may be explicitly stated in a contract.

So, when are you legally entitled to disobey a direction from your employer? The court case R v Darling Island Stevedoring & Lighterage Co; Ex parte Halliday and Sullivan (1938) established that a direction must meet the following criteria to be lawful and reasonable.

It must:

  • Relate to the subject matter or scope of employment.
  • Not involve illegality. For instance, a direction can’t ask an employee to break the law or violate safety obligations.
  • Be reasonable. What is considered reasonable can depend on the specific circumstances of the situation. It can often involve the terms of the employment contract, the type of work the employee does, and the history of interactions between them and their employer.

Therefore, if a direction from your employer does not meet any or all of these criteria, you have the legal right to disobey it. If you are dismissed for disobeying such a direction, you can hold your employer accountable through the Fair Work Commission. By making an unfair dismissal claim or adverse action claim, you can seek reinstatement or financial compensation.

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Have you been dismissed for refusing or disobeying directions? You may be eligible for an unfair dismissal claim.

Dance instructor dismissed for allegedly disobeying employer’s direction

The following events took place in the Fair Work Commission case –  Mr Neil Jon Lungay Colmenares v Caretodance Pty Ltd [2024]. Neil Colmenares started working for Sydney-based CareToDance as a dance instructor in January 2023. The business provides ballroom and Latin social dance lessons. Mr Colmenares, a Filipino national, joined the business on a temporary skills shortage visa.

This visa was set to expire in January 2025. His duties included providing dance instruction, selling dance programs as well as performing maintenance and admin tasks. The Fair Work Commission noted that Mr Colmenares was a “dedicated instructor who was well liked by his students.”

Wanted to wait till next day to take rubbish out

Mr Colmenares worked form 1:00pm to 9:00pm Monday to Friday. At the start of each day, CareToDance’s owner conducted a meeting with instructors to discuss their responsibilities. During a meeting on 23 July 2024, he told Mr Colmenares that he needed to take the rubbish out at the end of the day. A usually reasonably direction. The task was a common duty shared between the six instructors at the studio. In this particular week the task fell upon Mr Colmenares.

After completing his classes at around 9:00pm, he collected the rubbish lying about the studio with another instructor. As it was by then after his working hours, Mr Colmenares told his colleague he would leave the rubbish in the reception area. He intended to dispose of it at the start of the next working day.

However, after Mr Colmenares left, his colleague took the rubbish out instead. About 10 minutes later, the owner texted him and his colleague to ask if they had left the studio. The colleague said he had just taken the rubbish out. The owner then texted Mr Colmenares “@neilcolmenares_make sure as advised in the meeting today, please take the rubbish out at night.”

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Employees are allowed to complain that their directions given are unreasonable without fear of adverse action or backlash. Employees are protected under general protection laws.

Varied accounts of meeting the next day

The next day, during the daily meeting, the owner addressed the issue with Mr Colmenares. This was in the presence of his colleague who assisted him with the rubbish the previous night. Mr Colmenares told the Fair Work Commission that he explained to the owner why he did not rake the rubbish out. He said that he did not do so as by the time he collected all the rubbish, it was past his normal working hours.

Mr Colmenares therefore proposed to the owner that he should finish his lessons early to complete the task. In response, the owner told him that if he would not follow instructions, he could leave. Mr Colmenares then walked to the staff room, where he was followed by his colleague.

However, the owner told a different version of this interaction to the Fair Work Commission. He said he told Mr Colmenares, “You can leave if you don’t want to listen.” After reviewing the accounts, the Fair Work Commission found that Mr Colmenares version was more credible. Mr Colmenares upholds that he was dismissed for disobeying the direction of not throwing away the rubbish.

‘I don’t want you to open your mouth’: Things got heated in private

The owner subsequently requested Mr Colmenares meet him in his office. In his unfair dismissal application, Mr Colmenares claimed that he was questioned whether it was appropriate to answer back to a superior in front of colleagues. He further stated that the owner commented on cultural expectations of respect. Mr Colmenares claimed he referred to his experience visiting the Philippines. He suggested that he expected more deference from Mr Colmenares, who is Filipino.

According to Mr Colmenares, the owner presented him with two options.

“You can stay here, and in our meetings, if I say you do this, you do that, you do it,” said the owner, according to Mr Colmenares. “If you have an issue, I don’t want you to open your mouth in front of everyone, but you have to book a private meeting with me. If you can’t do it, you can pick up your things, go home and the position is terminated instantly.”  Mr Colmenares told the Fair Work Commission that he chose the second option, leading to his dismissal.

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The events forced upon Mr Colmenares could have been considered a forced resignation. Where the employer decides when the employee resigned and forces them to do so. Rather than the employee deciding or having any say in the matter.

Disagreed about nature of dismissal

A few hours later, the owner sent an email to the accounts team, copying in Mr Colmenares, stating:

“Neil has notified today the 24/7/2024 through a private meeting with myself around 12:30 pm, that he wishes to terminate his position and 482 visa with CareToDance Pty Ltd and he left the Studio with his belongings,” the owner wrote. The next day, Mr Colmenares responded via email.

“To set the record straight, I did not wish to terminate my position and 482 visa,” he wrote in the email. Mr Colmenares added that it was the owner “who asked me to pack my stuff and leave and so I did.”

Dismissed for “insubordination”

On 17 May 2024, CareToDance sent Mr Colmenares his dismissal letter. The business outlined several “reasons for termination.” It specifically mentioned that he had addressed the owner “in a rude and disrespectful manner.” The business said that Mr Colmenares “explicitly stated [his] refusal to obey a directive and repeatedly indicated [his] unwillingness to comply.” 

CareToDance said this was “insubordination” and that it breached its code of conduct. The business also said that Mr Colmenares was being dismissed for repeated tardiness and early departures from work. Also, that he had an “inappropriate relationship with a client.” Mr Colmenares was also told he was being let go because he failed to pass three internal exams. CareToDance also claimed that he had abandoned his employment.

“Given these breaches of our policies and your employment contract, we have no alternative but to terminate your employment with immediate effect,” CareToDance said.

Did worker disobey direction?

At Mr Colmenares’ unfair dismissal hearing, the Fair Work Commission accepted that he was dismissed “due to his failure to take out the rubbish on 23 July 2024 and his reluctance to do so.” It concluded that “this did not justify dismissal.” It labelled Mr Colmenares’ failure to follow this instruction as a “minor matter.”

“I do not consider that the failure to take the rubbish out at the end of a shift to be of such moment that it met the description of a failure to perform an assigned task,” the Fair Work Commission Deputy President said.

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Even casual employees have workplace rights and in some circumstances can claim unfair dismissal. Don’t allow your boss to exploit this common misconception.

He added that Mr Colmenares “intended to take the rubbish out the next day but was prevented in doing so” as his colleague had already taken it out. The Fair Work Commission noted that “there was a practice of not taking the rubbish out at night but taking it out the following day.” It said that Mr Colmenares was “willing to perform the task in accordance with that practice.”

The Commission noted that Mr Colmenares actions did not amount to insubordination. It said that he was “entitled to express the views that he did” during the morning meeting. The Commission said his exchange with the owner in front of colleagues “should not have resulted in Mr Colmenares’ dismissal.”

These quotes highlights how on some occasion employees cannot be dismissed for disobeying direction. Depending on the direction.

Fair Work referred to precedent

CareToDance argued to the Fair Work Commission that Mr Colmenares had resigned. It said that he was given the option of remaining employed. On the condition that he did not raise complaints in front of workmates. The second option, which Mr Colmenares took, was that if he would not follow directions he could home and be instantly dismissed.

The Fair Work Commission said that CareToDance’s owner had “presented Mr Colmenares with an ultimatum to obey his directions or leave.” It found that in selecting the second option, Mr Colmenares’ situation met the description of a previous unfair dismissal decision – Bupa Aged Care v Tavassoli.

In that case, the Fair Work Commission said the employee’s resignation was “not legally effective”. As it was made in the “heat of the moment”. Or, it was made when the “the employee was in a state of emotional stress or mental confusion.” This meant that “the employee could not reasonably be understood to be conveying a real intention to resign.”

Fair Work found worker did not resign

Turning back to Mr Colmenares, the Fair Work Commission said that he faced the same situation. It said that he “could not reasonably be understood to have, by taking the second option, conveyed a real intention to resign.”

The Commission said that Mr Colmenares’ email to CareToDance made it “clear that he did not wish to terminate his position and 482 visa.” It therefore concluded that Mr Colmenares’ employment was terminated by the owner, and not of his own volition.

Worker won huge unfair dismissal payout

The Fair Work Commission accepted Mr Colmenares’ request to not be reinstated to his position due to the “hostile environment” at CareToDance. It deemed that he would have worked at least another 26 weeks until the end of his contract. Therefore, the Commission ordered CareToDance to pay Mr Colmenares $24,500 as compensation.

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Don’t allow toxic workplace culture ruin your employment. Fight against unreasonable bosses and their directions.

Have you been fired for disobeying a direction?

We at A Whole New Approach are Australia’s leading workplace mediators. Our team has spent the last thirty years defending the rights of Australia’s workers. If you have faced dismissal for disobeying a direction, we can help you take action through the Fair Work Commission.

Employers across the country know and fear us for our work helping over 16,000 Australian workers stand up for their rights. We know how to use the Fair Work system to your advantage, to get you reinstated or compensated for unfair dismissal.

Call us today to take advantage of our no win, no fee service and for a free and private consultation. Dial 1800 333 666 now to take the first step to getting compensated.

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