In brief - Good policies can protect your business in the event of litigation
Employers who are faced with unfair dismissal complaints or other litigation are in a better position to defend themselves if they can demonstrate that they have well-written, up-to-date workplace policies and have trained their staff on those policies.
Fair Work Commission decisions illustrate importance of workplace policies
Businesses operate in a dynamic and complex legal environment that is constantly changing. It is imperative that modern businesses have well-written policies and training programs that ensure uniformity and properly govern workplace behaviour. At the same time, the policies must be consistent with the values of the organisation and compliant with constantly changing legislation.
Recent decisions in the Fair Work Commission illustrate the importance of not only implementing well-written policies and procedures, but also providing training to employees on those policies and procedures to manage workplace behaviour.
Lack of social media policy leads to successful unfair dismissal complaint
In the case of Linfox Australia Pty Ltd v Glen Stutsel  FWAFB 7097, Fair Work Australia determined that Linfox failed to have a social media policy in place to govern the conduct of its employees on social media websites such as Facebook and Twitter. The company was found to have unfairly dismissed Mr Stutsel.
Mr Stutsel had written derogatory comments on his Facebook account about two of his managers. When the managers visited Mr Stutsel's Facebook account and complained to Linfox, an investigation was conducted and Mr Stutsel was terminated for serious misconduct.
If Linfox had had a social media policy at the time of the misbehaviour and that policy had been clearly communicated to Mr Stutsel, his conduct may not have occurred or Linfox may have been justified in dismissing him.
Well written and communicated policies help employer defend unfair dismissal complaint
The recent decision of Kostantina (Deana) Hatzisevastos v Iron Mountain Pty Ltd  FWC 770 is an example of an employer being able to rely upon its well written and communicated policies and training program to succeed in defending unfair dismissal proceedings.
The Fair Work Commission determined that Ms Hatzisevastos was guilty of misconduct by accepting a laptop and a television from a supplier, despite Iron Mountain's Gifts and Entertainment Policy expressly prohibiting such behaviour. In coming to its decision, the Commission noted that the relevant policy was very clear, legal and reasonable, leaving employees well informed of their obligations.
The Commission also noted the recent Bribery and Corruption Online Training that had been provided to Ms Hatzisevastos prior to the misbehaviour. This training drew her attention to the relevant policy and recorded her agreement that she had read and understood the terms of the policy, including the repercussions of a breach.
The Commission ultimately determined that Iron Mountain had fairly terminated Ms Hatzisevastos' employment on the grounds of misconduct. The termination was found to be fair and reasonable in the circumstances.
Up-to-date policies invaluable when employers faced with litigation
While the above cases highlight the importance of having well-written and up-to-date policies to manage the workplace, they also demonstrate the invaluable protection such polices afford an employer when faced with unfair dismissal claims or other litigation.
The Linfox decision illustrates, among other things, the need to review current policies and introduce new policies as legislation is amended and new technology evolves. The Iron Mountain decision, on the other hand, reinforces the importance of having clear and appropriate polices and significantly, the need to ensure that employees know about them and are formally trained.
Good policies mean good governance
Policies should be reviewed and updated frequently to ensure that they are:
- complete in addressing all current and emerging risks facing the modern business
- up to date with the current legislation and technology
- written in plain English
- directive rather than contractually binding on employees
- provided to employees during a thorough induction and during refresher training at least every six months
- easily accessible and always available on request
- capable of withstanding judicial scrutiny if necessary
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.