Not following lawful and reasonable direction ends in dismissal
By Jeff Salton
In Khoder Abdulrahim v QBE Management Services Pty Limited (QBE) (2016), Mr Abdulrahim was a QBE employee and purchased a discounted motor vehicle insurance policy for his father’s car under QBE’s employee insurance program. Under the policy, Mr Abdulrahim was the contact person as his father could not speak English.
Mr Abdulrahim made an insurance claim on behalf of his father, claiming that another car had hit his father’s car while it was parked in the street. The panel beating business that Mr Abdulrahim owned quoted $38,000 to repair the vehicle.
QBE investigated and asked Mr Abdulrahim to participate in an interview. Mr Abdulrahim refused, saying that he was neither the policy-holder nor was he involved in the accident, and therefore, he would be of no assistance to the investigation.
However, QBE sought to interview Mr Abdulrahim because 24 motor vehicle claims (totalling over $106,000 in damages) and two household claims (totalling more than $15,000 in damages) had been made from his father’s residential address. In addition, the bank account nominated for five of those QBE motor vehicle insurance claims was in Mr Abdulrahim’s name.
QBE directed Mr Abdulrahim to participate in the interview, warning him that if he did not, disciplinary action could be taken against him, which included employment termination. Mr Abdulrahim still refused, so QBE summarily dismissed Mr Abdulrahim.
Mr Abdulrahim commenced unfair dismissal proceedings against QBE.
The Fair Work Commission (FWC) held that, given the circumstances, the direction for Mr Abdulrahim to participate in the investigation interview was lawful and reasonable. QBE was permitted to dismiss Mr Abdulrahim for his repeated failure to comply with its lawful and reasonable direction to attend an interview. The FWC said that Mr Abdulrahim had been forewarned of the consequences of not participating.
Employers can can lawfully dismiss an employee for failure to follow a lawful and reasonable direction if the circumstances warrant it. You should clearly warn the employee that the consequences of any refusal may result in the termination of their employment.
Clearly, in this case, QBE had done its homework and its process of investigation was lawful. If you were in QBE’s shoes … investigating an employee … would your workplace investigation have stood up under the scrutiny of the Fair Work Commission?
Get the latest employment law news, legal updates, case law and practical advice from our experts sent straight to your inbox every week.