FWC decision a reminder to employers to avoid 'long, complex and legalistic' policies
Often, employees — especially new ones — are overwhelmed by an onslaught of human resource policies that include written documentation, videos, and verbal briefings.
But a “set and forget” briefing on workplace policies that are difficult to understand may be challenged by disgruntled employees, as was evidenced by a Fair Work Commission hearing recently where an employee’s dismissal was deemed unfair because of the “long, complex and legalistic” policy manual and “haphazard” mobile phone procedures.
It was deemed that the policy the employee breached “might make sense to copyright lawyers and some IT specialists, but probably no one else”.
“As a general rule, it is prudent to inform new employees of the existence and content of policies and procedures during induction,” Robin Young, Holman Webb Lawyers partner and team leader workplace relations group, said. “This may be achieved by providing the documents, or by drawing attention to where they may be accessed.”
Employers should take note that while there is no legal requirement to inform employees of company policies, it is better to brief employees as soon as possible to avoid any potential legal matters later.
“There is no definitive time set by legislation or legal authority for when policies should be notified to employees,” he said. “It requires a common-sense approach to what is appropriate in given circumstances.”
The workforce should be informed whenever there are changes to policies and procedures, so they are aware of the employer’s current state of the rules and procedures.
“Generally, it is prudent to provide workforce training at least annually, although in some circumstances such as during significant change, more regular training should take place,” Young said.
“It is strongly recommended that employers keep records of all training, and that each employee’s record should include details of training.”
As evidenced by the Fair Work Commission’s ruling, simple language is required so all employees can understand an employer’s human resource policies.
Using complex, technical, and verbose language will not be in the employer’s favour if the matter becomes a legal dispute. Especially, if the documentation provided is not followed up by a face-to-face meeting where concepts and language can be explained.
“Fundamentally, it would not be fair to discipline or punish an employee for breaching a policy of which the employee had not been informed or did not properly understand.,” Young said. “It is incumbent upon employers to ensure that employees are aware of the existence and content of policies and how they operate.
“It is not sufficient to merely implement the policies and expect the employees to comply with them, nor is it sufficient to merely identify the policies and ask them to be read. For example, where employees are known to have limited English, it is necessary to ensure that there are means to facilitate an employee’s knowledge and understanding of policies.”
At TileCloud, each new team member is introduced to all HR policies to ensure they understand the expectations, according to Drew Mansur, co-founder of the online tile store.
“Whenever we make updates or introduce new policies, we communicate these changes to the entire team and encourage them to ask questions or provide feedback. While we don't typically revisit these policies with individual employees, we make sure they know where to find them and whom to ask if they have any concerns.”
The employer makes “a conscious effort” to create policies that are compliant with legal requirements and written in a way that everyone can understand, he said.
“We want our employees to feel confident when it comes to following our policies, with clear and simple language being vitally important.”
Ultimately, it is the employer’s responsibility to ensure that employees can understand and comply with human resource policies and procedures.
“It is crucial that employers take whatever steps are necessary to ensure that their employees are aware of the existence of policies, changes when they occur, how they operate and, in some cases, why a policy or procedure applies,” Young said.
“Policies and procedures should form part of the induction and orientation process and part of an employer’s ongoing workforce training and education programs. This should take into account the workforce demographic which may include non-English speaking employees or other relevant considerations.”
In some instances, it may be prudent to use external qualified trainers, he said, whereas in smaller businesses it may be managed internally by managers, operational staff and HR professionals.
