'You need to be proactive in ensuring policies and procedures are current,' says lawyer
Employers might want to take note of a recent decision from the Fair Work Commission (FWC) after it ruled that a worker was not unfairly dismissed on the grounds of health and safety violations.
The worker claimed that he had been dismissed unfairly despite having followed standard practices that had been in place for years. He argued that some of the alleged violations were common among other employees and that he had not been the only one engaging in these practices.
It’s a reminder for employers on the importance of being consistent with workplace policies, says one employment lawyer.
“You can’t just set and forget. You can’t just give someone a handbook and a contract and just expect them to get on with the job. You need to be proactive in ensuring policies and procedures are current, that they’re understood, and that they’re sensible,” Alan McDonald, Principal at McDonald Murholme Lawyers, told HRD.
The decision is “good for everyone”, he said, as it means all members of the business are on the same page when it comes to objectives and expectations within the workplace.
According to the worker, the employer selectively enforced policies against him while overlooking similar actions by others, with informal conversations about his conduct taking place – resulting in him having no warning about the formal dismissal procedure.
After reviewing the evidence, the FWC found that the dismissal was not unfair. The Commission determined that the worker had repeatedly disregarded company policies and safety rules designed to protect employees and the public.
It’s a positive development in an otherwise rigid dismissal procedure, McDonald said.
“There was a focus here on the specific conduct of the employee and didn’t concern itself too much with what others might have done and perhaps got away with. It’s a good decision because it shows that what the mores in the workplace are... very important”, he said.
“It means that employees can rely upon them. How the employer has generally acted and treated others in this case can now be seen as the standard in the workplace. It’s a slight departure from conventions on how they have looked at the situation – but it’s good because you want consistency, you don’t want people to be made scapegoats.”
With the FWC setting the ‘bar high’ for employers relying on polices to terminate employment – there needs to be a change in how policies are used, according to McDonald.
“A policy that’s incapable of normal operation radiates uncertainty across the whole organisation – even at the highest level. Sometimes archaic policies are just impractical, but because someone’s worked outside of what was set – say someone uses the company credit card that’s not the most senior person in the room because they were busy – you could hit some trouble,” he noted.
In short, McDonald enforced the idea that rules need to be compiled, fairly applied and use common sense.
With changes to codes of conduct being implemented to enhance employee wellbeing, such as the right to disconnect changing how we enforce workplace practice also has benefits.
Numerous research shows a connection between consistency and productivity in the workplace, with one citing that “trust and more importantly, trustworthiness, is important in an office because it impacts almost every measure of success in our professional and personal lives,” according to behaviour scientist David Penglase.
McDonald told HRD that, since COVID, it’s becoming more difficult to secure a good workforce and that’s all the more reason to change policies in order to retain the workers that are considered valuable.
“You look at the rich and powerful employers, especially in America - they end up with the most profitable business because they've got a good business or a good business model. They can also get the best out of the staff – especially young staff - who are not used to the discipline. If an employer doesn't pick up on that and work with that, they restrict the growth of the business and increase the turnover of staff, which is to their disadvantage.”
