Managing Insubordination At Work: Essential Tips For Australian Employers

Most teams run well when directions are clear and everyone pulls in the same direction. But when an employee refuses to follow lawful and reasonable instructions, small issues can quickly turn into big headaches.

Insubordination can impact productivity, morale and safety - and if it’s handled poorly, it can also lead to legal risk. The good news is that a fair, consistent process (grounded in Australian employment law) will help you address problems early and reduce the chance of disputes.

In this guide, we’ll break down what insubordination is in the Australian context, the steps to manage it properly, and the key legal issues to keep in mind. You’ll also find practical tips to prevent problems, and to protect your business with the right policies and documentation.

What Is Insubordination In Australia?

Insubordination generally means an employee’s refusal to follow a lawful and reasonable direction from a manager, or behaviour that intentionally undermines authority. It’s different from poor performance (not meeting targets) or simple mistakes - it’s a deliberate failure to comply.

Common examples include:

• Refusing a lawful and reasonable instruction (for example, to attend a safety briefing or follow a rostering change permitted by the applicable award or agreement).
• Openly challenging or undermining a manager’s authority in front of others.
• Using abusive or threatening language towards supervisors or colleagues.
• Refusing to perform certain tasks within the employee’s role without a valid reason (such as a legitimate health and safety concern).

“Lawful and reasonable” depends on the role, the contract, any modern award or enterprise agreement that applies, and the workplace context. A direction is more likely to be reasonable if it relates to the employee’s duties, is consistent with their contract or award, is safe, and is given fairly.

Why it matters: beyond the day-to-day impact on your team, persistent insubordination - if managed improperly - can lead to unfair dismissal or general protections claims. Having a consistent process is essential.

A Fair, Lawful Process To Manage Insubordination

Every situation is different, but a structured and well-documented approach will help you act fairly and stay compliant with the Fair Work Act 2009 (Cth), the National Employment Standards (NES), and any applicable award or enterprise agreement.

1) Start With A Private Conversation

Address issues early. Sit down privately with the employee and explain the specific behaviour you observed, when it occurred and why it’s not okay. Keep the focus on facts, not generalisations.

• Ask for their perspective - there may be misunderstandings, workload issues, or other reasons that need to be addressed.
• Be clear about expectations and the next steps if the behaviour continues.
• Take notes and send a brief written summary of the meeting, including the expected changes and timeframes.

Tip: it’s a good idea to tell the employee they may have a support person at any future formal meeting. Under the Fair Work Act, an employer must not unreasonably refuse a support person if the employee requests one during a meeting that could lead to dismissal.

2) Investigate Before You Decide

If the allegation is serious or disputed, carry out a proportionate investigation. That might involve speaking with witnesses, reviewing documents or messages, and giving the employee a chance to respond to the concerns.

Where appropriate, consider a temporary suspension on pay (only where the contract or policy allows), paid suspension, or a stand down in limited circumstances. When safety or serious risks are involved, read up on options for standing down an employee pending investigation so you manage risk while preserving fairness.

3) Use A Performance Management Plan (If Suitable)

When behaviour can be corrected, a structured plan is often the best path. A typical plan should set out:

• What needs to change (clear, specific behaviours).
• How success will be measured (and by when).
• Support you’ll provide (training, check-ins, clarification of duties).
• What will happen if expectations aren’t met.

Document the plan and hold regular review meetings. Keep written records of each discussion and outcome.

4) Issue Written Warnings And A Show Cause Letter

If behaviour doesn’t improve, move to formal discipline. A written warning should identify the conduct, explain why it is unacceptable, state the improvements required, and set out possible consequences if it continues.

Before making a decision to terminate, send a show cause letter inviting the employee to respond to the allegations and the potential outcome. This is a key part of procedural fairness - the employee must have a real opportunity to be heard before you decide.

5) Termination With Notice (Or Pay In Lieu)

If the conduct persists after warnings, you may decide to end employment with notice. Check the NES, the employee’s Employment Contract, and any applicable award or agreement for the correct notice period.

You can require the employee to work out their notice, place them on garden leave, or provide payment in lieu of notice. Whatever you choose, confirm the decision in writing and include the reason, the final date of employment, and information about final pay and entitlements.

Important: small businesses (fewer than 15 employees) should follow the Small Business Fair Dismissal Code. If you’re a small business and the dismissal is consistent with the Code, it can help defend an unfair dismissal claim.

6) When Summary Dismissal May Be Lawful

In cases of serious misconduct, it may be lawful to dismiss without notice. “Serious misconduct” typically includes behaviour that causes serious and imminent risk to health and safety or business reputation, or deliberate refusal to follow lawful and reasonable directions in a serious way.

Even with serious misconduct, apply a fair process: put the allegations to the employee, allow a response, consider the response, and then decide. Document every step. If you have any doubt, get advice before you proceed.

Key Legal Considerations For Employers

To reduce legal risk and support a fair outcome, keep these issues front of mind as you manage insubordination.

Lawful And Reasonable Directions

Your direction must be both lawful (not contrary to legislation or the contract) and reasonable in the circumstances. Directions aligned with the role, safety, and business needs are more likely to be reasonable.

Modern Awards And Enterprise Agreements

Check the applicable award or enterprise agreement - they may include consultation requirements, rostering rules, classification duties, and dispute resolution steps that affect what directions are reasonable and the process you must follow.

Procedural Fairness And Unfair Dismissal

If a dismissal is challenged, the Fair Work Commission looks closely at process. Key factors include whether the employee was notified of the reason, given a chance to respond, and whether a support person was allowed. For a practical summary of what the Commission considers, see the guide on section 387 of the Fair Work Act.

General Protections (Adverse Action)

Do not take action against an employee for prohibited reasons (for example, because they exercised a workplace right, made a complaint or inquiry, took leave they were entitled to, or because of protected attributes). General protections claims can be costly and don’t require the employee to meet minimum service requirements.

Notice, Final Pay And Garden Leave

When ending employment (unless it’s lawful summary dismissal), comply with the NES and the contract regarding notice periods. Options include working notice, garden leave and payment in lieu (if permitted). Pay outstanding entitlements on time, including unused annual leave and any award or agreement obligations.

Record-Keeping And Documentation

Keep accurate records of meetings, warnings, investigations, decisions and communications. If there is a dispute later, your contemporaneous notes and documents will be critical evidence.

Small Business Fair Dismissal Code

If you have fewer than 15 employees, the Code provides a framework for lawful dismissal, including for serious misconduct. Make sure you follow it and keep records of how you complied.

Preventative Culture: Policies, Training And Contracts

The best way to manage insubordination is to reduce the chance it happens in the first place. Clear expectations, consistent communication and strong foundations go a long way.

Set Clear Expectations From Day One

• Provide a tailored Employment Contract for each employee that clearly sets out duties, reporting lines, and your right to give lawful and reasonable directions.
• Adopt a practical code of conduct and role-specific policies (for example, safety, mobile phone and social media policies) so employees know what’s expected.
• Ensure managers give directions consistently, explain the “why” where possible, and avoid mixed messages between teams.

Build The Right Policy Suite

Written policies are your playbook. They help managers respond consistently and give employees clarity about behaviour standards and consequences.

• Workplace Policy: A central, plain-English set of rules covering conduct, performance, communication, safety and escalation pathways.
• Performance Management Procedure: Outline early intervention steps, documentation requirements, timelines, and who’s responsible at each stage.
• Bullying, Harassment and WHS: Reinforce respectful conduct and safety obligations - issues in these areas often sit alongside insubordination concerns.

Make policies accessible, train staff (and especially supervisors) on how to apply them, and review them regularly to match current laws and your operational reality.

Invest In Training And Communication

• Train leaders on giving directions, having difficult conversations, and applying procedural fairness.
• Offer refreshers on key policies before peak periods or organisational changes.
• Encourage feedback loops - sometimes “refusal” masks unclear instructions or resource gaps you can fix quickly.

Documentation, Support Persons And Procedural Fairness

A fair process protects your people and your business. Here’s what to keep in mind when you’re working through a discipline pathway.

Use Clear, Written Communications

• Confirm the issues and expectations in writing after any meeting.
• For formal steps, set out the allegations, reference the policy or instruction allegedly breached, and attach any supporting documents.
• Give realistic timeframes to respond or improve (and stick to them).

Support Person Requests

Employees can ask to have a support person present at meetings that could lead to dismissal. You don’t have to provide the support person, but you shouldn’t unreasonably refuse their presence if requested. A support person may take notes and provide moral support; they’re not there to advocate or argue the case.

Meetings And Notes

At each formal meeting:

• Explain the purpose of the meeting and the possible outcomes.
• Present the concerns factually and invite a response.
• Adjourn to consider the response before deciding on next steps.

Afterwards, send a brief summary confirming what was discussed and any agreements or directions. Accurate file notes are often decisive evidence in unfair dismissal matters.

If The Situation Escalates

Where allegations are serious or repeated, follow a structured pathway: investigation, written warning(s), a show cause letter, and then a decision letter. If risks are acute (for example, threats to safety or business integrity), consider interim measures such as paid suspension or a lawful stand down while you complete your investigation.

Frequently Asked Questions

Is A Single Incident Enough To Dismiss For Insubordination?

It depends. A single, serious refusal to follow a lawful and reasonable direction can amount to serious misconduct, justifying summary dismissal. But most cases call for warnings and an opportunity to improve. Assess the risk, the context, the employee’s record and your policies before you decide.

Do I Have To Offer Notice If It’s Serious Misconduct?

If it is genuinely serious misconduct, you may terminate without notice. For all other dismissals, comply with the NES, any award or agreement, and the contract - that could mean working notice, garden leave or payment in lieu. Always confirm the basis for the decision in writing.

What If The Employee Is On Probation?

Probation doesn’t remove your obligation to be fair, but the risk of an unfair dismissal claim may be lower if the minimum employment period hasn’t been reached. Still, follow a sensible process and keep records - a fair process reduces the chance of disputes of any kind.

Can I Stand Someone Down While I Investigate?

In limited circumstances, yes - especially where there are safety or operational risks. Check your contract, policies and any applicable award, and make sure a stand down or suspension is lawful and reasonable in the circumstances. For an overview, see our guide to standing down an employee pending investigation.

Key Takeaways

• Insubordination is a refusal to follow lawful and reasonable directions, and it can seriously affect productivity, safety and team culture.
• Apply a fair, step-by-step process: early conversation, proportionate investigation, a performance plan if appropriate, warnings and a show cause opportunity before any decision.
• Check your legal framework at every step - the Fair Work Act, the NES, and any modern award or enterprise agreement, plus the Small Business Fair Dismissal Code if you have fewer than 15 employees.
• Give employees a genuine chance to respond, don’t unreasonably refuse a support person, and keep thorough notes and documentation.
• When termination is the outcome, follow the correct notice rules or consider garden leave or payment in lieu, and confirm the decision in writing.
• Prevent issues with clear expectations, a tailored Employment Contract, and an up-to-date Workplace Policy set - and train managers on consistent, fair application.

If you would like a consultation on managing insubordination in your workplace, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.