A recent FWC decision has highlighted the importance of having clear, concise, plain language workplace policies that employees can understand.
An employee’s breach of a workplace policy is often relied on as sufficient evidence by their employer as grounds for dismissal. Provided the process leading to the dismissal was fair, a breach of a workplace policy may also be held by a court or tribunal to be a valid reason for the termination of employment.
However, in order to be relied upon to support disciplinary proceedings, workplace policies should also be clear and comprehensible to the people using them.
In a recent decision, the Fair Work Commission (FWC) reinstated an employee and compensated her for lost pay because it found that, although there was a valid reason for dismissal, the policy breached by the employee was not accessible, understandable or “reasonable”.
Here’s what HR can learn from this case.
Complicated workplace policies
The employee in this case was dismissed for deleting data from a work-issued mobile phone, with the employer citing a complex and detailed IT procedure manual which prohibited the removal of data from work-issued devices without authorisation.
As a result, the employee’s role was terminated. She then commenced unfair dismissal proceedings against her former employer.
While the FWC considered the act of deleting data as a valid reason for terminating the employee’s employment, it 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.”
- 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 employee was reinstated to her position and compensated for lost pay, with a reduction of 25 per cent to account for her data-deleting conduct.
Creating clear and concise policies
Employers and HR professionals are reminded that in order to rely upon a policy and enforce its terms, the policy should be:
1. Readily available to all applicable employees.
2. Transparent and clear in its terms.
3. Reasonable in relation to its objectives and what it seeks to regulate.
To avoid the risk of facing unfair dismissal proceedings as a result of inadequately thought-out or overly complex workplace policies, employers are advised to take note of the following checklist:
1. Adopt plain language as much as possible, and limit the use of jargon and complex or legalistic terms. Policies and procedures should be clear, concise, and related to relevant industry or organisation.
2. Clearly specify the behaviours that may constitute misconduct and/or serious misconduct, and the particular sections of the policy that, if breached, may constitute misconduct.
The policy should also specify what, if any, disciplinary action may follow on from a breach. If a policy is lengthy and contains a range of obligations of differing scopes, a catch-all provision noting that any breach of the policy may constitute misconduct is likely to be inadequate.
3. Before disseminating a policy, imagine being in the position of an employee accused of breaching its terms. Are the policy’s objectives and terms easy to understand? Is what the policy seeks to regulate reasonable? Is the mode of communicating the policy effective? Having various modes of communicating the policy such as video format, a written document and, if possible, in a summary document for onboarding, is recommended.
4. Update policies and procedures regularly to remain compliant with legislative changes, such as the many that are arising from the Secure Jobs, Better Pay Bill, and be consistent with evolving workplace practices and community standards. Do this every 12 months (more if there is a large-scale legislative change, as is the case in 2023).
Conduct regular reviews to ensure uniform compliance with the policies and procedures among managers and supervisors and in each sector of the workforce.
5. Communicate policies and procedures clearly and frequently, particularly where the obligation is strict. If employees are not familiar with a policy and its terms, relying on the policy as a ground for termination will likely be challenging. For employees who have challenges with comprehension, and/or who are non-English speaking, consider what adjustments you may need to make to communicate policies and procedures to make them easily understood.
Getting your policies and procedures in order is not a task to put on the backburner. A compliant and clear policy can keep your organisation out of hot water, especially in the current legislative environment, which is changing quickly and often.
Need help crafting policies that set clear behavioural expectations and meet FWC requirements? AHRI’s short course will help you understand how to structure, write and implement policies and procedures.