By Carly Stebbing -
It’s that time of year. We are all tired, overbooked with social events and in the case of parents, trying to plan for and manage end of year concerts and school holidays/ vacation care. In an effort to maintain personal wellbeing sometimes we need to say no, but can you say ‘no’ to your boss? Yes, sometimes you can.
As an employee, you are obliged to comply with reasonable and lawful instructions from your employer. A direction will be lawful unless it is unlawful and whether it is reasonable will depend on the reason the employer is issuing the direction and the impact it has on you. It may include consideration of whether you were consulted on the need to issue the direction.
Here are some examples of reasonable and lawful directions for lawyers:
- To show up to work on time (virtually or otherwise);
- To comply with your professional obligations;
- To act in the best interests of your employer and clients;
- To deliver work to the deadlines set by your employer or client, so long as they are reasonable (this can be a tricky one to assess); and
- To achieve your billable hours in a day/ week/ month/ year, so long as the work is available and the targets are reasonable.
Here are some examples of things you can say ‘no’ to:
- Working excessive hours;
- Taking annual leave or unpaid leave when it does not suit you;
- Attending out of hours events;
- Responding to emails and calls out of hours; and
- Working public holidays.
Why can you say ‘no’ to these requests I hear you ask? Well, this is because many relate to the workplace rights you have under the National Employment Standards (‘NES’). Let me walk you through it.
The NES are the minimum standards applicable to most lawyers in Australia. They include maximum weekly hours, annual leave and public holidays.
You can refuse to work unreasonable additional hours, being hours in excess of 38 hours per week for full-time employees and in excess of your agreed hours, if you work part time. In determining whether additional hours are reasonable, the following must be taken into account:
- Risk to health and safety;
- Personal circumstances, e.g. family responsibilities;
- Needs of the workplace;
- Compensation, role and responsibility, e.g. if you are a junior lawyer on a low starting salary and you are not being offered overtime or time off in lieu, it will be less reasonable than a partner earning $250,000; and
- Notice.
If having considered these factors, you do not think your employer’s request to work additional hours, attend an event, or reply to calls, texts or emails out of hours is reasonable, you can say ‘no’.
Annual leave is another NES entitlement and it requires leave to be taken by agreement. You can only be directed to take annual leave where the requirement is reasonable, e.g. you have excessive leave accrued or the firm is being shut down, for example over Christmas and New Year. If the firm is not being shut down or you do not have enough annual leave accrued to be paid for the shut down, and you haven’t agreed to take unpaid leave (check your contract, sometimes you agree to take unpaid leave when you commence employment), you can say ‘no’.
Similarly, public holidays are covered by the NES. You are entitled to be absent from work on a public holiday and receive your usual pay (if you are permanent and it was a day you would normally work). An employer may only require you to work on a public holiday if the request is reasonable. The factors for determining reasonableness are similar to those for additional hours above. If, after considering them, you do not consider the request to be reasonable, you can say ‘no’.
But what if my employer punishes me for saying ‘no’? Well, welcome to your general protections. An employer cannot take adverse action against you for exercising a workplace right. That includes asserting your rights under the NES. If your employer does take adverse action against you for exercising a workplace right, you can commence a ‘general protections’ claim in the Fair Work Commission or the Federal Court, depending on the circumstances. Claims can be made both during the course of employment and on termination of employment. The time limitation on termination of employment is 21 days from the date the termination is effective.
Personally, I have made it a practice at work to say ‘no’ to tasks that exceed my personal capacity and boundaries. When I was a junior lawyer at a mid-tier law firm, I routinely got into the office at about 9am. A peer got in real early every day and my supervising partner noticed. The thing is, I have always known my work value and I knew that I always hit budget while my peer did not. So one morning, my supervising partner popped his head in to observe my start time compared to my peer, inferring I should come in earlier. I replied with the facts and said ‘I deliver my work on time, I meet all of my deadlines, and I make or exceed budget every month. I know [peer] doesn’t’. My partner nodded, smiled and walked away. I carried on getting to the office about 9am.
In short, in order to maintain your boundaries and know whether you can say ‘no’, you need to know your workplace rights and assert them. A good starting point is to read your contract, understand the NES, slay at work but also know when it’s fair to say ‘no’.
