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Employment Law Update: Fast Approaching Changes to the Fair Work Act - Time to get Employee Policies Up-to-date

Changes to the Fair Work Act

With more changes to the Fair Work Act on the horizon (1 January 2014), employers should make it a priority to review and update their employment policies and check they comply with the amendments to the Fair Work Act (FWA).  

Among the most significant amendments is the workplace bullying provisions. From 1 January 2014, a worker who has been bullied at work will be able to apply directly to the Fair Work Commission for an order to stop the bullying. Under the new provisions, the Commission is required to deal with an application within 14 days. The tight time limits will mean an employer will have very little time to investigate, assess, and respond to a claim. A key step in the Commission’s review process will include close scrutiny of the employer’s workplace bullying policy and how the employer responded and managed the employee claim in relation to the policy.

Time to Review Employee Policies

Employees are obligated to comply with reasonable (and lawful) directions of their employer. If they don’t comply with policy, that is a breach of their contract with their employer. However, if the employer has a policy and fails to train, review, provide updates, communicate the consequences of breaching the policy and fails to consistently apply the policy, the Commission is likely to provide little support to an employer and reinstatement of a dismissed employee may well be likely.

The recent decision (August 2013) of the Full Bench of the Commission in B, C and D v Australian Postal Corporation T/A Australia Post (B, C & D), an Appeal against unfair dismissal of 3 employees of Australia Post dismissed for emailing pornography in breach of company policy, provides some valuable insights as to how the Commission views the activities of employers in relation to enforcing their policies. Ultimately in this case the Commission found that the dismissals of B, C & D harsh, unjust and unreasonable, notwithstanding a finding that there was a valid reason for dismissal. In reaching its decision, the Full Bench put Australia Post’s employee policy and actions in enforcing and managing its policy under the microscope. 

Whilst many employers do take what they believe to be all the necessary steps (such as requiring employees to familiarise themselves with policies, training, providing online access to policies, providing updates and warnings of consequences of a breach) employees may still have little awareness of the policies. The Commission recognised that often employee policies become nothing more than “wallpaper”. 

If breaches of policy of the sort that occurred in B, C & D occur with an inconsistent response on the part of the employer in relation to its policy (i.e. a policy should apply to all employees irrespective of position or title), then the Commission will also consider this against a decision where an employee has been dismissed. In addition, particular conduct (such as emailing pornography) may breach a policy so as to constitute a valid reason but dismissal for that conduct without prior specific warning may be viewed by the Commission as harsh.

So what does all this mean in layman’s language? A failure to regularly engage with employees about policies; monitor compliance; or enforce a policy may also be relevant factors that weigh against a finding that a dismissal for breach of the policy was not harsh, unjust or unreasonable.

Tips for employers

  1. Communicate policies to your Employees regularly. Do not approach policies with a “set and forget” mentality. They should we written in a clear, concise style and articulate the consequences of a breach. Take active, sustained steps to inform employees about policies - provide regular training, alerts, newsletters, updates and explicit warnings of the consequences of breaching a policy. Make a sustained effort over time to make employees aware of the company policies. Bear in mind that if the Commission perceives a lack of commitment on the part of an employer regarding its policies, it is more likely to consider an employee dismissal as “harsh, unjust or unreasonable”.

  2. Stay focused to company culture - take corrective steps, monitor the policies and address cultural issues if they are problematic. Workplace bullying is a good example of the sort of issue that employers should take every available and necessary step to stamp out. A workplace culture that tolerates or in effect condones a breach of policy will provide no support to an employer before the Commission.  

  3. Treat all Employees fairly and consistently according to the policy. The provisions of the Fair Work Act are intended to ensure a “fair go all round”. Whatever sanctions an employer’s policy prescribes, the Commission is required to decide whether the termination is harsh, unjust or unreasonable.” Again, if the Commission perceives an employee has been unfairly treated or subjected to inconsistent sanctions, the employer will get little support before the tribunal.

Please do not hesitate to contact Susan Reece Jones if you would like further information on the upcoming Employment Law Update.

Susan Reece Jones, Lawyer

28 November 2013