The definition of a lawful and reasonable direction is at the heart of many employment disputes. From return-to-office mandates to drug and alcohol testing, here are four areas where workplace directions can come under scrutiny, and how to ensure your approach holds up.

You’ve issued the direction. It seems reasonable, but the employee disagrees. Now you’re in a dispute you didn’t see coming. It’s one of the most common situations HR practitioners and managers face, and one of the most misunderstood areas of employment law.

Speaking at a recent webinar on this topic, presented by Harmers Workplace Lawyers, Dr Giuseppe Carabetta, Associate Professor of Workplace and Business Law at UTS Business School said disputes often arise when employers give directions in a way that affects employees’ personal circumstances, privacy or autonomy.

“This implied term goes to the very heart of the employment contract,” he said. “In very broad terms, it enables the employer to manage the employment relationship by determining what tasks the employee must perform, how they’re performed, when they’re performed, and, broadly speaking, where the work is performed.”

Dr Carabetta emphasised that while this gives employers a necessary right of control, that authority is far from unlimited. 

Whether a direction under the implied term is truly lawful and reasonable is a delicate balancing act shaped by contemporary workplace norms, the specific nature of an employee’s role and strict statutory boundaries such as privacy and anti-discrimination laws. 

Navigating these grey areas effectively requires a clear understanding of where management prerogative ends and employee rights begin. Below, we share four common scenarios where lawful and reasonable directions come into question.

1. Return-to-office mandates

The return-to-office debate has been one of the most contentious workplace issues in recent years.

While employers generally retain the right to direct employees where work is performed, the Fair Work Commission has made it clear that context matters, said Carabetta.

He pointed to one case involving a part-time auditor who challenged a direction to return to the workplace during the COVID-19 pandemic.

“The Fair Work Commission accepted here that the direction of the employer to return to the workplace during COVID can be lawful,” he said.

However, the Commission also found that reasonableness depended on the employee’s personal circumstances.

In this case, those circumstances included the employee’s age, medical vulnerability and the fact she had already been working from home for an extended period with the employer’s approval.

“There were no apparent issues with performance, or that kind of thing, [which] ended up undermining the employer’s claim that she’d be required to return to the workplace on reasonableness grounds.”

Carabetta noted that employers should “be looking to make [their] policies flexible enough to accommodate individual circumstances”, particularly where health risks or other personal circumstances are involved.

HR takeaways from this case:

• Assess context over blankets: Do not rely on blanket return-to-office mandates; the Fair Work Commission evaluates reasonableness based on the specific, surrounding context of each individual employee.
• Review individual vulnerabilities: Actively consider personal circumstances, such as an employee’s age and validated medical risks, before enforcing a workplace return, especially if the direction conflicts with their health needs.
• Evaluate past performance and approvals: Recognise that an employee’s history of working from home effectively with prior management approval will heavily undermine any subsequent claim that their physical presence is strictly necessary.
• Build flexibility into policies: Formulate and enforce workplace attendance policies with enough inherent flexibility to accommodate unique individual circumstances and health risks.

2. Employee surveillance and monitoring

The rise of hybrid and remote working models has forced businesses to fundamentally rethink how they measure productivity and maintain oversight. But when an employee transitions from the physical workspace to the home office, where does management’s right to supervise end, and the employee’s right to privacy begin? 

It’s a delicate legal tightrope, but as recent case law demonstrates, out of office does not mean out of oversight.

To illustrate this, Dr Carabetta cited a 2023 case where an employer conducted a three-month review of a remote worker’s laptop activity after concerns emerged about productivity and attendance.

The review examined keystroke activity, computer use and VPN log-ins.

According to Carabetta, the FWC accepted that monitoring can be lawful and reasonable in some circumstances.

“Employees can, according to this decision, be required to submit to monitoring if monitoring is necessary, or surveillance is necessary to ensure that the job is being done correctly or properly,” he said.

The Commission ultimately found there was a valid reason for dismissal and accepted that cyber monitoring was a legitimate tool for verifying work performed remotely.

“Generally speaking, whether monitoring is going to be lawful and reasonable will depend on the nature of the job and health and safety requirements.” But, “if you’re thinking about notice or other requirements under any applicable Surveillance or privacy laws, that would be wise too”.

HR takeaways from this case:

• Legitimate verification: cyber monitoring, including tracking keystrokes, VPN logins, and active hours, is legally recognised as a legitimate and reasonable tool to verify work performed remotely.
• Performance-driven justification: surveillance is usually defensible when triggered by documented, ongoing concerns regarding an employee’s productivity, output, or failure to meet rostered hours.
• Procedural fairness first: Technical reviews and disciplinary action should be backed by a clear performance history, such as warning the employee or placing them on a performance improvement plan before moving to termination.
• The nature of the job matters: the lawfulness and reasonableness of digital monitoring will heavily depend on the specific nature of the job, operational expectations and health and safety requirements.

3. Drug and alcohol testing

Drug and alcohol testing is an area where employers must balance employee privacy concerns with workplace safety obligations.

Dr Carabetta highlighted a 2021 decision which involved a hardware sales employee who repeatedly refused to provide a urine sample for drug testing.

The employee argued the testing method was overly invasive and suggested alternative testing options should have been used.

However, the Fair Work Commission upheld the dismissal.

“The Fair Work Commission accepted that direction was reasonable, having regard to the employer’s workplace health and safety obligations,” said Dr Carabetta.

The employer was also assisted by having a detailed and consistently enforced drug and alcohol policy in place.

“If you can point to safety, then that’s generally a firm tick, and that puts you on stronger ground in terms of your justification for the direction.”

HR takeaways from this case:

• Safety trumps privacy: an employer’s workplace health and safety obligations provide a robust justification for drug and alcohol testing, meaning a direction to test can be reasonable.
• Policy consistency is vital: having a detailed, long-standing and consistently enforced drug and alcohol policy that clearly outlines testing methods gives employers much stronger grounds when defending a dismissal.
• Management chooses the method: if an employer’s policy explicitly allows management to determine the testing method (e.g. saliva swab versus urine sample)
• Role location is not a shield: safety policies and testing directions can legitimately apply to office-based or front-desk sales employees, not just employees working directly in warehouses or high-risk operational areas.
  

4. Social media and political expression

Another hotly debated topic is whether an employee’s social media activity, and the opinions expressed on such platforms, can be policed by their employer.

“Postings on platforms like [X, formerly Twitter], [Meta, formerly Facebook and] Instagram allow what would otherwise be private comments to be disseminated to a wide audience.”

One of the most closely watched examples of this was the 2024 Lattouf v ABC case.

The case centred on social media posts expressing political opinions and whether the employer had issued a lawful and reasonable direction regarding those posts.

A key issue in this case was that the employer had not clearly directed the employee to refrain from posting.

“According to Justice Rangiah, the line manager had only provided some general advice, maybe that it’s best not to post about the Gaza war, but not actually issued a firm direction,” said Dr Carabetta.

The court concluded that this was not a case of failing to comply with a lawful and reasonable direction.

However, if posts cause significant reputational damage, and there is a policy protecting such legitimate interests, it could be a different story, he added.

“Although there’s no general right to regulate employees’ private lives, discipline… or even dismissal for out-of-hours conduct may be justified where the conduct is likely to cause sufficient damage to the employer’s legitimate interests such as reputational ones, or is contrary to the employee’s duties.” 

HR takeaways from this case:

• Issue explicit directions, not advice: General guidance or managerial suggestions do not legally qualify as a direction. To defend a dismissal for non-compliance, managers must issue an unambiguous, firm instruction directly to the employee.
• Target behaviors and policy breaches: While political opinions are protected by discrimination law, employers can legitimately discipline employees if they express those views in an offensive manner that breaches alternative corporate policies.

The balancing act of lawful and reasonable directions

Ultimately, navigating lawful and reasonable directions in the modern workplace is no longer a matter of simple managerial decree. As Dr Carabetta highlighted, the legal landscape has shifted toward a highly scrutinised balancing act –one where an employer’s traditional right of control is constantly weighed against contemporary workplace norms, bodily autonomy, privacy, and human rights.

“Reasonableness is not a static thing,” said Dr Carabetta. 

It changes with the times, meaning that what was considered a standard directive a decade ago may face intense legal opposition today if it clumsily tramples on an employee’s personal life or protected attributes.

Dr Carabetta offers final, more general advice for working through these grey areas, including:

• Whenever you’re formulating an operational mandate or a digital monitoring framework, your justification must always anchor back to two core factors: the specific nature of the employee’s job, and the legitimate business interest you are trying to protect (such as workplace health and safety, productivity or public-facing brand reputation).
• Ivory-tower mandates rarely survive real-world scrutiny. Ensure your workplace policies are flexible enough to accommodate unique individual circumstances, medical vulnerabilities and personal health risks when they arise.
• Never forget about your legal obligation to consult employees over major workplace changes such as new policies. Genuine consultation requires sharing the underlying data – such as risk assessments – and giving employees a chance to respond before a policy is finalised. A procedural failure to consult will instantly render an otherwise lawful direction unreasonable.

🧰 HR’s career resource toolkit

• Learning: HR Law (advanced) – this course is grounded in practical, expert insights to help you navigate Australia’s complex employment law landscape.
• Learning: HR Law (introduction) – this introductory course is grounded in practical, expert insights to help you navigate Australia’s complex employment law landscape.
• Learning: Workplace Conflict Resolution – Explore how to effectively identify, manage and resolve team-based and interpersonal conflict in the workplace with this course.

All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.