When an employer decides it would like to implement a new policy or amend one of its existing policies, key steps in the process are sometimes overlooked – communication and training.
Communication and training are important as they ensure employees are aware of changes in the workplace as well as any new requirements.
Ideally communication and training about the new policy or changes should take place prior to implementation.
By not training and educating employees, employers expose themselves to a risk that an employee may plead ignorance about a policy especially during a disciplinary process.
The Fair Work Commission (the Commission) recently addressed this issue in Con P v ComfortDelGro Cabcharge T/A Hillsbus Co Pty Ltd [2016] FWC 1901.
Mr P was employed as a bus driver for Hillsbus. A passenger complained to Hillsbus that he observed Mr P looking at and touching his phone on two occasions whilst he was driving a bus. In addition to the Road Rules 2014 (NSW) (Road Rules) prohibiting the use of mobile phones (even to listen to music), under the Hillsbus Policy, employees were not permitted to use “a mobile phone or other similar device” whilst they operated or worked on a bus. At the completion of a disciplinary process, Mr P’s employment was terminated on the basis that he had breached the Hillsbus Drivers Guide and Policy.
At the hearing, Mr P explained that the device he was using was an old mobile phone without a sim card for the purpose of listening to music. On this basis, he submitted that the device was not a working mobile phone.
Senior Deputy President Drake found that there was a valid reason for the dismissal as she was of the view that the device Mr P was using was a mobile phone and as such was in breach of the Road Rules and Hillsbus Drivers Guide and Policy.
In relation to the Hillsbus Drivers Guide and Policy, SDP Drake noted that employees were provided with copies at the commencement of employment but were then not provided with up to date copies when they were amended. However, in this case SDP Drake was satisfied that Mr P was aware of the ban on mobile phones.
SDP Drake took into consideration the lack of information and explanation from Hillsbus about how the policy was to apply to music devices did create ambiguity: there was no definition of what was a “similar device” and drivers were able to use a small transistor radio or other MP3 players.
SDP Drake ultimately determined that the termination of Mr P’s employment was harsh, unjust and unreasonable. She ordered Mr P be reinstated in his position with recognition of continuity of service and for Hillsbus to pay Mr P compensation for any loss of remuneration.
Tips for employers
When a policy is amended or a new policy is introduced, employers should advise employees of its contents and any changes.
This could be by way of communicating the change to all employees by email referring them to a link on the intranet, by posting information on notice boards – or sending a hard copy of the updated or new policy to the employee’s address.
Where a change imposes new obligations on employees – it is wise to conduct training about the new requirements – with employees signing a register to show they attended.
Keeping a record of this training together with attendance / acknowledgement receipts is a prudent measure and may be used to support a claim that the employee had knowledge of the policy and its application in the event of a policy breach in future.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
