Having in place robust workplace policies is a crucial step for businesses, and can be pivotal to ensuring you have communicated your expected standards and processes clearly to your staff. Policies provide a guideline for employees and for management on how to conduct themselves within the business, outlining the expectations and responsibilities of each party. Without these standards in place and made clear to all parties, serious misunderstandings can arise about what the expectations are in the workplace – and the consequences of this can be significant including legal risks, financial loss, and reputational damage. The risks of failing to have robust and clearly communicated workplace policies in place were demonstrated in a recent case that looked at the termination of an employee based on conduct that had been outlined in the business’ workplace policy.
The case Eptesam Al Bankani v Western Sydney Migrant Resource Centre involved an employee who was dismissed after deleting data from a work-issued mobile phone. The employer cited a complex and detailed ‘IT procedure manual’ which prohibited the removal of data from work-issued devices without authorization.
Whilst the Fair Work Commission (‘FWC’) considered the act of deleting data as a valid reason for terminating the employee’s employment, it was ultimately determined that the dismissal was harsh, unjust, and unreasonable because:
- The IT procedure manual that the employee had allegedly breached was “long, complex and legalistic” and had not been clearly communicated to the employee.
- Specifically the FWC noted the relevant clause would likely only make sense to an IT specialist or copyright lawyer but was unlikely to be easily understood by others; with the FWC having particular concerns considering English was not the employee’s first language and so the employee was unlikely to have remembered and understood the entire manual.
- The manual did not clearly state that deleting data from a mobile phone without authorisation would constitute serious misconduct and lead to significant disciplinary outcomes up to and including dismissal.
- Managers and other employees in the organisation routinely deleted data from their mobile phones without repercussions.
- The FWC found little evidence that the employer ensured its employees had read and understood the contents of the policy manual.
The result was that the employer was ordered to reinstate the employee to her former position and pay compensation to the employee for loss of pay, with a reduction of 25% from the compensation to account for her misconduct in deleting the company data.
The case provides many learnings for employers, including that simply having a policy in place is unlikely to be enough to rely upon when considering disciplinary action against an employee for alleged breaches. Instead, employers should ensure employees have read and understood the contents of the policy, and that policies are written in easy-to-understand, plain language. Furthermore, the case demonstrates the necessity of ensuring your policies are robust and tailored to your business needs, ensuring they are particular in how they convey the expectations and processes for your employees.
When you are writing your workplace policies or reviewing them, we recommend the following:
- Avoid using complicated legal jargon that your employees may not be able to understand. Simplifying complex language and writing in a way that is colloquial and easy to digest is imperative to the policies being applied correctly.
- Ensure that any policy that discusses misconduct is clear on what behaviors are defined. We often see policies that are unclear or are brief on what constitutes misconduct or serious misconduct We recommend having detailed clauses that explain what unacceptable workplace conduct is, and the consequences of this, so there can be no confusion.
- Update policies and procedures regularly, the Fair Work Act is constantly changing so ensuring that the business has the most up-to-date policy to reflect any of those changes is vital.
- Employment contracts should also include a clause that outlines that employees are required to adhere to workplace policies.
- Finally, we recommend ensuring that you communicate the contents of policies frequently, especially at the time of implementation. However, we also recommend whenever you are implementing a new policy or making amendments to an existing policy that you meet with your staff to discuss the changes and resend out the updated version. This is the best way to ensure all of your staff understand what is required and provides a great forum for them to ask any questions.
In conclusion, the importance of having robust policies cannot be overstated. Policies can provide clear guidelines for employees and management, help to minimize risks and liabilities, promote consistency and fairness, protect a company’s reputation, and improve employee morale and engagement. However, it is imperative these are being regularly reviewed and updated to ensure they remain relevant, effective, and up to date. By investing in robust policies, companies can demonstrate their commitment to ethical practices, build trust with stakeholders, and create a positive workplace culture that benefits everyone.
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.