Although there is no clear test to determine what reasonable instructions are, we can only be guided by case law in the area which is developing over time.
In the past it was an established principle that an employee terminates a contract of service if he “wilfully disobeys the lawful and reasonable instructions of his master”. The case of Brewster v Burke and the Minister for Labour (1985) established that one incident of insubordination amounted to gross misconduct, which justified the dismissal of the employee.
This is now dealt with under the Unfair Dismissals Act 1997 which states:
6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
In more recent years more emphasis has been put of the employees’ justification for that refusal. In the case of Employer v Employer in 2017 an employee was required to undertake Garda Vetting for his role, which was carried out through a third party to comply with legislative requirements. The employee refused to complete the necessary paperwork. He insisted on being vetted by the Gardai directly as he had stated that he had been the victim of identity fraud in the past however these claims were not substantiated. The Workplace Relations Commission found that the summary dismissal was justified in these circumstances.
The Workplace Relations Commission and the Labour Court have taken the view in recent years that in circumstances where the employee raises a question as regards the legality of the instructions; there is a responsibility on the employer to properly establish the legal facts. In recent case law it was found that in circumstances where an airport employee was directed to drive an uninsured or untaxed vehicle, which on occasion would be used on public roads that it was reasonable in those circumstances for the employee to question the actions of the employer. The employer made no effort to investigate the employees concerns and instead dismissed the employee for his failure to follow instructions. The Labour Court found in favour of the employee and found the dismissal to be unfair.
In giving instructions to an employee an employer should ensure that they have taken all reasonable steps necessary to ensure “as far as practicable” the safety of their workers. In the case of Stobart (IRE) Ireland Services Limited v Keith Carroll a driver refused to work because he was extremely tired and had worked excessive hours. He alleged that he was being penalised and relied on Section 27(2)(a) of the Safety, Health and Welfare at Work Act 2005 to defend his actions. In the case the employer was found to have acted inappropriately.
The case of Cashman v St. Patrick’s Hospital Cork provides guidance on the steps that an employer should take in dealing with an employee who fails to follow instructions. In that case, the member of staff consistently refused to park in the staff cark park without any good reason. This was despite a directive been given to all members of staff. The employee was then dismissed pending a disciplinary hearing. At the hearing the employee was warned that continued failure to park in the staff car park could result in disciplinary action, up to and including dismissal. The employee continued to not park in the staff car park and was ultimately dismissed.
The case looked at:
- Were the instructions of the employer reasonable;
- Were fair procedures applied;
- They also looked at the reason for the refusal to follow the instructions.
Should an employee wish to take a matter under the Unfair Dismissals Act 1997 they should note the following:
You must start your claim for unfair dismissal within 6 months from the date of the dismissal. If you have reasonable cause to delay, you may be allowed to extend this period for up to 12 months from the date of dismissal. However, the reason must be strong and convincing – saying you did not know the law will not be enough.
Under the Unfair Dismissals Acts, the date of your dismissal is the date that the notice you are entitled to expires. If you have worked at least 13 weeks for your employer, you are entitled to a statutory minimum period of notice of one week. Your written contract of employment may set a longer period of notice.
Normally you must have at least 12 months’ continuous service with your employer before you can bring a claim for unfair dismissal. Continuous service is generally broken only if the employer dismisses you or you terminate your employment.
However, there are important exceptions to this general rule on 12 months’ service. Even if you have served for less than 12 months, you may bring a claim for unfair dismissal where you are dismissed for:
- Trade union membership or activity
- Pregnancy, giving birth, breastfeeding or any matters connected with pregnancy or birth
- Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the Paternity Leave and Benefit Act 2016, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer’s Leave Act 2001
- Making a protected disclosure under the Protected Disclosures Act 2014
Ciara McLoughlin Solicitor
*Before acting or refraining from acting on anything in this article, legal advice should be sought from a Solicitor.