FWC warns workplace policies must be clear and accessible to all employees

In Brief - the FWC has warned employers that workplace policies must be clear and easy to read. Policies must be accessible, understandable and reasonable.

In Eptesam Al Bankani v Western Sydney Migrant Resource Centre Ltd [2023] FWC 557 (7 March 2023), the Fair Work Commission (FWC) considered the dismissal of an employee, Ms Al Bankani.

In December 2021, when Ms Al Bankani was taking annual leave, she deleted data from her on-call work mobile phone before leaving it with a colleague. Little did she know that this amounted to serious misconduct as she had breached the employee policy manual which provided very specific directives not to remove data from work mobile phones. As a result, Ms Al Bankani was dismissed from her employment and commenced unfair dismissal proceedings where the FWC found that this decision was harsh, unjust and unreasonable given her employer's policies were too complex and difficult to understand. 

Background

Western Sydney Migrant Resources Centre Ltd (WSMRC) is a not-for-profit company that provides services to Western Sydney's migrant community, including emergency relief, youth and family support and case management services. 

Ms Al Bankani commenced employment with WSMRC in 2016 on a part-time basis, providing Specialist and Intensive Services to clients. As part of her employment, Ms Al Bankani obtained a company "on-call" mobile device for the provision of services to clients outside office hours. 

Upon taking leave in Christmas of 2021, Ms Al Bankani passed the mobile phone onto a colleague to take responsibility for any out of office calls. Before doing so, Ms Al Bankani deleted its contents - which ultimately resulted in her dismissal. 

The contract between the parties required that client records were maintained for at least seven years, and disposal or destruction of records was strictly prohibited. Additionally, the WSMRC alleged that the deletion of the records was also in contravention of their Procedure Manual.

Ms Al Bankani was of the opinion that she had never seen her contract, did not delete anything that could be understood as a client record and had not breached the company policy. 

Despite not being able to establish that any client records had been deleted, WSMRC dismissed Ms Al Bankani for serious misconduct on 3 February 2022. 

Deputy President Easton found that the WSMRC's dismissal of Ms Al Bankani was harsh, unjust and unreasonable, despite finding that there was a valid reason for her dismissal. While Ms Al Bankani had breached the literal terms of the employee policy - the document was too complicated and bore little connection to the procedures initiated and tolerated by managers.

The FWC found that while the policy "might make sense to copyright lawyers and some IT specialists", it probably wouldn’t make sense to anyone else, and the terms breached by Ms Al Bankani were "far from clear or obvious". 

Additionally, WSMRC had failed to investigate whether Ms Al Bankani had actually deleted any data, did not adequately inform employees what constituted serious misconduct, failed to assure that their policies had been read or understood and had no procedures to actively preserve the data stored on work mobile phones.

Ms Al Bankani was reinstated to her position, with continuity of employment, and her pay was restored with a 25% reduction due to her misconduct. 

Workplace policies should be accessible, easy to understand and reasonable 

Often policies, particularly 'off the shelf' versions, don't reflect the way that work is actually done.

To be effective, policies should be simple, reasonable and applicable to a particular workplace.  Employees should also be able to access and understand the policies. 

Accessible - Access entails more than just having the ability to reach it. The policy should form part of regular training, it should be something that is regularly referred to and referenced. In this way, employees should understand the importance of the policy document.

If documents don't form part of the day to day workings and language of a workplace, there is likely little reason for an employee to be familiar with policies. In such cases, the document may be deemed inaccessible.

Understandable - Documents should be easy to understand for employees who are using them. It may be difficult for people to understand documents and policies with complex and legal language.

Consider whether policies need to be visual/pictorial, translated into other languages or simplified. Flow charts or summaries of policies can assist with understanding, as can regular training that explains the purpose and intent of the policies. 

Reasonable - Policy terms should be clear and comprehensible. They must be applied and enforced consistently, reasonably and fairly to all employees.

They should define key terms and provide examples of misconduct, bullying and any other issue which might lead to disciplinary action. 

Systems must also support the application of policies. For example, if mobile phone data is to be retained, phones might be configured so that data cannot be deleted. 

Conclusions

For a policy to be relied upon to support significant disciplinary action employers must be confident that their employee understands the policy, that the policy is consistently applied and that systems support performance in accordance with the policy. 

'Off the shelf' documents will provide little support to employers who are trying to drive performance, manage risk and hold people to account.