The majority of sophisticated workplaces have documented policies with respect to everything from safety issues, to human resources, discrimination and harassment and even use of social media, but if the goal is to protect from any prospect of being exposed to legal liability, then employers need to be aware that the policy itself is only half the battle.
Once a policy is documented and established, an employer has an obligation to instruct and train all staff with respect to the policies and to then ensure that it is implemented in a fair and even handed way. If the employer fails to do so, then the employer can still be exposed to the risk of litigation.
A good example can be found in the recent case of some employees of BHP who were sacked for using mobile phones at work. BHP had a Mobile Electronic Device Procedure which precluded mobile phones in the workplace. When two of BHP’s operators at the Goonyella Riverside Mine were found to have breached the policy, their employment was terminated immediately. One of the employees gave himself up by posting on Facebook from his mobile device during work hours whilst the other was discovered to have his phone in a work vehicle he was in.
When both workers applied to the Fair Work Commission, their employment was ultimately reinstated because it was found by Commissioner Paul Spencer that BHP had not properly trained workers in the mobile ban, impressed on them the “zero tolerance” nature of the policy, and had not given the employees a chance to respond to the misconduct allegations. Commissioner Spencer found that the policy had been applied inconsistently as other employees who had been found to have breached the policy had not had their employment terminated. The Commissioner accepted that the policy was a reasonable one and was justified for safety reasons and found that the reason for dismissal was valid but nonetheless, ordered reinstatement because of these shortcomings in BHP’s application of the policy.
Whilst decisions like this might seem somewhat harsh from the employer’s perspective, the message from the Fair Work Commission seems rather simple; fairness to all requires consistency in the application of policies and all staff need to know exactly where they stand.
Practice Group Leader
Schultz Toomey O’Brien Lawyers, Part of the Slater & Gordon Group
Ph: (07) 5413 8900
Fax: (07) 5413 8958