When relying on a workplace policy as grounds for dismissal, employers must be able to clearly demonstrate that the employee is aware of the policy and has undergone meaningful training on the policy.
A failure to do so may render the dismissal to be unfair, as was seen in the recent decision of Samad v Phosphate Resources Ltd T/A Christmas Island Phosphates [2024] FWC 2868.
The employee worked as a Truck Driver for Christmas Island Phosphates (the Employer) for almost 20 years before he was summarily dismissed from his employment for breaching multiple workplace policies.
The dismissal came following an investigation conducted by the Employer which found that the employee had:
The Employer considered the above behaviours constituted a serious breach of its Code of Conduct, Standards of Behaviour Policy, Anti-Discrimination and Harassment Procedure and Psychosocial Safety and Workplace Policy (collectively, the Policies).
The employee applied to the Fair Work Commission (FWC) claiming that his dismissal was unfair.
While admitting to making some of the inappropriate comments, the employee submitted that he was unaware of the Policies he was alleged to have breached. The employee stated that had he been made aware of the Policies, he would have known that explicit language was prohibited and unlawful.
The Employer submitted that the employee was notified about its Code of Conduct, which included harassment in the workplace, during a Toolbox meeting in September 2023. As for the other Policies, the Employer submitted that they were made available to all employees on its intranet.
The FWC was ultimately satisfied that the employee had engaged in inappropriate behaviour towards his colleague which, combined with his reaction towards his colleague when asked to stop the comments and his lack of remorse, constituted a valid reason for dismissal.
However, the FWC was not satisfied that the employee’s behaviour constituted serious misconduct warranting immediate dismissal.
The FWC stated that the Fair Work Regulations 2009 (Cth) refer to a specific type of harassment, being sexual harassment, and while the employee’s comments had some sexual undertones, his behaviour was not capable of meeting the definition of sexual harassment.
Despite there being a valid reason for dismissal, the FWC found the dismissal to be harsh and unjust for a variety of reasons including the employee’s 20-year tenure, his 62-years of age and the fact that the Employer was unable to produce any evidence that he was aware of the Policies relied on for his dismissal.
The FWC did not consider the Toolbox meeting sufficiently notified employees of the Code of Conduct and expected standards of behaviour, noting that the meeting lasted for 30-minutes and only 23 employees attended. The FWC considered this to have “all the hallmarks of a tick and flick exercise designed to demonstrate compliance”.
The FWC was also critical of the fact that the Employer was unable to recall or produce any record that it had rolled out the remaining Policies.
This was particularly the case for the Psychosocial Safety and Workplace Policy, which the FWC considered to be a recent policy introduced in light of the new legislative concept of psychosocial hazards in the workplace. The FWC expected the Employer to have had some ability to demonstrate that this policy had been rolled out.
The FWC was therefore satisfied that it was likely that the employee was not familiar with the Policies, which led it to consider at paragraph [75]:
As such, I am minded to consider what may have happened if the [employee] had been properly trained in acceptable workplace behaviours. Not through a tick and flick exercise but through a culturally and linguistically appropriate interactive training course that dealt with not just the “what” but also the “why”.
In doing so, the FWC found that the employee’s inappropriate behaviours may have been mitigated had he undergone training to understand acceptable workplace behaviours and the consequences of breaching the Policies.
Accordingly, the FWC was satisfied that the employee was unfairly dismissed from his employment.
This decision highlights the importance of effectively communicating and training employees in policies and procedures.
As noted by the FWC in this decision, employers must be able to demonstrate that they have conducted comprehensive and interactive training courses which are designed to ensure that employees understand acceptable workplace behaviours and the consequences of breaching workplace policies.
Employers should be looking to plan training or refresher training of its workplace policies and procedures in the new year, particularly in light of the recent legislative changes relating to sexual harassment and psychosocial hazards in the workplace.
If you need any assistance conducting workplace training, Workplace Law can help run those sessions – feel free to reach out on (02) 9256 7500.
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