Duty of obedience

An employer’s power to give orders to its employees and expect them to be obeyed is a fundamental feature of the employment relationship. The employee's duty of obedience (implied by law into every employment contract) requires that the employee cooperate with all lawful and reasonable directions of the employer. A failure to obey amounts to breach of contract at common law.

The common law duty of obedience is demonstrated in the famous English decision of Pepper v Webb [1969] 2 All ER 216. In that case, the plaintiff was employed as a head gardener. Over a period of three months, his work deteriorated and he became inefficient. On the day of the dismissal, he was directed to put some plants in the garden by the owner of the house, which he refused to do, retorting “I couldn’t care less about your bloody greenhouse and your sodding garden”! The English Court of Appeal held that summary dismissal was justified because the refusal to obey the order to put plants in was wilful disobedience of a lawful and reasonable order.

In another case, Lane v Fasciale (1993) 5 VIR 508A, a direction to a school Principal not to publicly speak out against a decision to close a school was held to be a lawful and reasonable order. The parish council determined that the school should close. Public response to the pending closure was adverse, and the Principal participated in public meetings on the issue. Subsequently the Principal was expressly instructed in writing to assist in giving effect to the closure decision and to refrain from any further public comment against the closure. He continued to participate in certain activities seeking to oppose the closure and was ultimately dismissed without notice. The Supreme Court of Victoria found that the dismissal was justified. The primary duty of the Principal was to his employer, and it was his duty to obey any lawful and reasonable directions given.

Teacher’s conduct found to be improperly undermining school leadership

In a recent decision of Jeb Hendricks v Catholic Education of Western Australia [2022] FWC 2702 (Hendricks), the FWC found that the employee, who held the position of Head of Mathematics, improperly undermined the school’s leadership by emailing parents to alert them that a NAPLAN test was rescheduled, in deliberate disobedience of the Deputy Principal’s direction.

Due to the rescheduling of the NAPLAN test, the College had two NAPLAN tests, one of which was the numeracy test, scheduled on the same day. The FWC was satisfied that the Deputy Principal had expressly told the teacher not to email parents regarding the scheduling of the numeracy NAPLAN test. There were other concerns raised about the teacher from his colleagues and the Executive Council of the College, including the teacher’s “zealous approach” to his role as a member of the Executive Council which had a negative impact on his relationship with school leadership.

The teacher believed himself to be a “direct servant of God” in preference to his duties under his employment contract and the College’s code of conduct to obey lawful and reasonable directions given by College leadership. The concerns raised by staff and the executive were considered by the FWC to be valid reasons for dismissal because the teacher chose to act “with little regard for his duty to his employer”.

Lessons for schools

This Hendricks decision confirms the legal position that a teacher’s deliberate disobedience of lawful and reasonable directions by school leadership may amount to a valid reason for dismissal, both at common law, and for the purposes of unfair dismissal laws under the Fair Work Act 2009 (Cth).

Schools should factor disobedience of lawful and reasonable directions into disciplinary processes, which may include reliance on verbal directions, as well as clear directions contained in policies and codes of conduct.

For more information on employment issues and how they can affect your organisation, contact the Dentons Employment team.