The loud legal troubles of “Quiet Quitting”

In the last few months, the labour relations lexicon has expanded to include a fast trending new term; “quiet quitting”.  First used in a TikTok by a young American engineer called Zaid Khan, the video has been viewed millions of times and has been the subject of conversation globally.  As Khan explains in the video, the term refers to the idea of “quitting the idea of going above and beyond”, and “no longer subscribing to the hustle culture mentality that work has to be your life” or that you are “defined by your labour”.

Of course, employers and employees alike in Australia will be familiar with phrases that evoke the same idea, such as; “bludging”, “slacking off”, “faffing about”, or “chucking a sickie”, “taking a smoko” or “shooting off early”.

This concept, of working the bare minimum, precisely just to your job description is obviously of concern to employers, who understand that when employees are engaged, invested and committed to their role and the business, the additional effort they give directly results in additional productivity and results. 

In this article, we explore the concept behind “quiet quitting” including its surprisingly long cultural and industrial history, what employers can and cannot do if they believe that an employee is “quiet quitting”, and some practical steps to consider to proactively mitigate the likelihood of “quitters”.

New label, old idea

What many supporters of the recent “quiet quitting” trend fail to acknowledge, and perhaps would be surprised to know, is that the concept is not new or original in the slightest. In addition to bearing strong similarities to popular socio-cultural attitudes towards work in Australia, the idea of “working to rule” is historically a common form of industrial action.

For centuries all over the world, workers have used this as a very effective form of industrial action, particularly when outright striking was not authorised by law. For example, by performing their jobs but refraining from carrying out anything that was not specifically articulated as part of their role, workers found that the normal operations of a business would still be severely disrupted and would force their employer to make concessions in bargaining.

The resurgence of this concept, framed as a new ‘trend’, is perhaps an understandable consequence of the burnout and re-evaluation of priorities that many workers have experienced during the COVID-19 pandemic. Many employees may also feel that to withdraw any labour that they feel is beyond what should be expected strengthens their position, in an already tight labour market, to negotiate for higher wages or better conditions.

Conversely, the concept seems to be at odds with the reality of the labour market in Australia currently, where skills are short and labour is in demand. Rather than “quiet quitting”, it may serve both employers and employees best if those who are disillusioned and unhappy with their jobs to seek employment elsewhere, even in an entirely different field.

What to do about a ‘quitter’, under law

Understandably, employers will want to know what they can actually do in the face of “quiet quitting” – particularly if this is in relation to an individual employee and not part of collective action. Notably, you cannot performance manage, or terminate an employee unless they are actually failing to meet the inherent requirements of their role as set out in their contract of employment or position description, without risking a claim for adverse action or unfair dismissal under law.

This means that if an employee is taking care to still meet the requirements of their position, it will be difficult to initiate any processes relating to performance. However, if, for example, their performance and conduct is placing an additional burden on their coworkers or resulting in poor feedback from clients, this may constitute grounds to initiate a conversation around performance expectations. This conversation may be further supplemented by any internal policies or procedures that relate to expectations around performance and conduct.

Crucially, your employees all have obligations under the relevant workplace health & safety legislation, chiefly a duty to take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons in the workplace. If an employee is only putting in the bare minimum at work, any additional burden placed on their team members and colleagues will likely ‘adversely affect’ their health and safety. This is particularly true when you consider the context of a factory floor or warehouse, or in public transportation. Not only would this breach of a legal duty constitute grounds for disciplinary management, but it also may attract penalties under statute.

In addition, if an employee’s contract explicitly states that they are expected to work “reasonable additional hours” to meet the requirements of their role, and they are refusing to work these additional hours, you may also have grounds for performance management. However, what is considered to be “reasonable” additional hours is subject to legal interpretation (see section 62 of the Fair Work Act 2009 (Cth); FWO v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242; Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512).

Of course, any action taken against an employee should follow any applicable principles of procedural fairness under law, and the reasons given to an employee should be clear and defensible.

Lazy or unhappy? Practical steps for an engaged workforce

It may be easy to consider employees who are engaging in “quiet quitting” and doing the bare minimum at work as lazy or unmotivated, and in some cases this may be true. However, it could also be a symptom of an employee feeling unhappy, disengaged or disconnected from the business. Employers should take care to consider whether it could also be due to deeper workplace concerns, such as bullying, harassment or discrimination.

Consequently, the first step if you suspect that an employee may be “quiet quitting” should be to check in with that employee regarding their health & wellbeing. This step will ensure that employers are also meeting their workplace health & safety obligations under law.

Employers should also consider, particularly in the post-pandemic workplace, setting leadership examples of maintaining work-life balance and boundaries, where possible and appropriate, to combat any burnout in their workforce. Disillusionment, disaffection and apathy may also be present in a workforce that continues to primarily work from home, without the incidental engagement and connection that is fostered by working alongside your peers in the office. 

Next, rather than finding reasons to discipline an employee who may have reduced their productivity and commitment, employers can instead find ways to create accountability or reward employees for their individual performance and contributions to the organisation. This can include measures such as bonus schemes, where the metrics are set so that an employee is only rewarded if they go beyond the requirements of their role.

Ultimately, if employees are engaged and connected to their team and the wider business and feel like their professional goals and aspirations are aligned with the purpose and values of the company, this can result in clear and measurable benefit to the business. Not only will productivity increase, but it will encourage a happy and sustainable workforce and business culture, and hopefully reduce the likelihood that your employees will jump on the bandwagon of this latest iteration of an old concept.

Author: Hannah Lawson

Contributing Partner: Darren Gardner