When an employee is performing poorly, generally, the first step management should take is to require the employee to attend an informal counselling session. The aim of these sessions is to help the employee understand where they are failing to meet expected standards and to assist them with identifying ways they can modify their behaviour to improve their performance.
However, an employee may throw you a ‘curve ball’ by refusing to meet with you for counselling. If you find yourself in this situation, it is important to remember that an employer is entitled to expect an employee to comply with a reasonable and lawful direction to attend a meeting with management, provided it falls within the employee’s scope of employment. As Commissioner Cloghan declared in Scott Wilson v Leighton Contractors Pty Limited  FWC 5503, an employee is ‘under an obligation to carry out lawful instructions’ given by their employer and it ‘would be intolerable for employees to consider attendance at meetings requested by the employer to be at their discretion’.
Several recent cases have demonstrated that a failure to follow a ‘reasonable and lawful direction’ to attend a meeting with management may provide grounds to support a valid dismissal of the non-compliant employee:
- In Scott Wilson v Leighton Contractors Pty Limited  FWC 5503, Mr Wilson, a fly-in fly-out employee, filed a complaint with his employers in relation to claims of harassment and bullying. However, he then refused to comply with the employer’s instructions relating to their grievance process, which include a refusal to attend meetings with management to discuss his complaint. The Fair Work Commission found that Mr Wilson’s conduct constituted ‘rank insubordination’ and provided grounds for the employer to summarily dismiss him from his employment.
- In Marcus v Teachers Mutual Bank  NSWADT 41, Mr Marcus’s refusal to attend three scheduled meetings to discuss his absences from work contributed to a finding by the New South Wales Administrative Decisions Tribunal that his employer had reasonable grounds to justify termination of his employment. This decision was reached notwithstanding that Mr Marcus was found to have responsibilities as a carer for his terminally ill father, as the Tribunal stated that his duties as a carer did not outweigh his obligation to his employer to follow a reasonable direction given to him to attend an urgent meeting to explain and attempt to justify his absences from work.
- In Gippsland Waste Services v Irene Meadley  FWC 3090, the Fair Work Commission held that the refusal of the employee, Ms Meadley (a weighbridge operator), to attend a meeting to discuss allegations of bullying against her provided, at the least, an arguable case to justify her dismissal.
What you should do when faced with this curve ball:
- Tell the employee that the meeting, although informal, is not optional, and that the employee is required to attend and cooperate.
- Warn them that their non-attendance may give rise to a right to terminate their employment for failure to comply with the reasonable and lawful direction to attend the counselling session with management.