Case: McManus v Scott-Charlton (1996) 70 FCR 16
Outcome: cited
The following principles are well established. An employer may give an employee a lawful and reasonable direction, and it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer. In McManus v Scott-Charlton (1996) 70 FCR 16 , Finn J said at 21: "The accepted view in this Court is that it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer: see Australian Telecommunications Commission v Hart (1982) 65 ALR 41 ; Bayley v Osborne (1984) 4 FCR 141 ; for a different view on the matter of reasonableness see 10 Halsbury's Laws of Australia, 'Employment', par 165-265, but cf W B Creighton, W J Ford and R J Mitchell, Labour Law (2nd ed, 1993), pars 8.2-8.8. ... The 'standard or test' of the lawfulness of a command or direction that has been adopted in this Court for common law purposes is that of Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday [1938] HCA 44 ; (1938) 60 CLR 601 at 621-622: If a command relates to the subject matter of the employment and involves no illegality , the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.' (Emphasis added). ... The need for some such limitation is patent: employment does not entail the total subordination of an employee's autonomy to the commands of the employer. As was said by the President in Australian Tramways Employees' Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42: 'A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker's singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.' There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case." 49 It is also an established principle that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely. In Victoria, duties are cast upon employers by the Occupational Health and Safety Act 2004 (Vic). Section 21 provides: "(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health." (2) Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following ... (d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer; (e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health." Section 22(1) provides: "An employer must, so far as is reasonably practicable (a) monitor the health of employees of the employer; and (b) monitor conditions at any workplace under the employer's management and control; and (c) provide information to employees of the employer (in such other languages as appropriate) concerning health and safety at the workplace, including the names of persons to whom an employee may make an enquiry or complaint about health and safety."