Your employer instructs you to do something illegal. What are your rights as an employee?

As an employee, you may be faced with a stressful situation where your employer directs you to do something illegal – potentially under duress or threat of losing your job. It is imperative you understand your rights and obligations in relation to reasonable and lawful directions from your employer in order to avoid personal risks, such as civil action against you or criminal charges being laid.

Reasonable and lawful direction

As an employee, you are bound to adhere to and comply with all reasonable and lawful directions from your employer. This is an implied obligation in all employment relationships. It also appears in the Fair Work Regulations 2009 (Cth) in the context of summary dismissal for serious misconduct.

Failure to comply with reasonable and lawful directions may result in a finding of serious misconduct. If substantiated, there is a risk of disciplinary action being taken against you, up to and including termination of employment. Termination in such circumstances is usually without notice.

A direction from an employer will not be lawful if that direction requires an employee to breach any State, Territory or Commonwealth legislation. An employee may refuse to comply with the direction in these circumstances.

An employee will not be required to comply with a direction from their employer, if that direction is unlawful, unreasonable, outside the scope of the employee’s role or area of expertise or if the action required would cause a risk to the health and safety of the employee or others.

Employees are responsible for their own illegal conduct

Where an employee complies with an unlawful direction and engages in conduct or activity that is illegal, the employee could be personally responsible and may face charges for any criminal offences that may have been committed in the course of complying with that direction.

Where you suspect your employer is directing you to act in an illegal manner, you should raise this concern through the applicable internal policies and procedures or as set out in an applicable enterprise agreement or award. If there are no policies, agreements or awards relative to your employment (or you do not know of any), you should speak with your Union or a lawyer experienced in employment law.

Employee protections for refusing an unlawful direction

Your employer cannot treat you differently, bully you or terminate your employment on the basis of your refusal to engage in an unlawful direction.

Protections under the Fair Work Act exist to avoid adverse action or termination in these circumstances. Such inappropriate conduct by an employer can generally be escalated and dealt with in the Fair Work Commission.

Get help from an employment lawyer

If you suspect or have been directed to act in an illegal manner by your employer, it is imperative to seek legal advice as a matter of priority.

Hall Payne Lawyers are highly skilled in advising and representing employees before a range of Commissions and Tribunals.

If you need advice or representation in relation to any type of employment law matter, you should seek advice as early as possible. 

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au