Policies: it’s what you know

Two recent cases dealing with employee misconduct have highlighted to employers their responsibilities around Workplace Policies and Procedures.

In the first case, Griffiths v Rose [2011] FCA 30, a long serving senior public servant was successfully terminated for accessing pornography upon his work laptop. The employee did not disseminate the pornography to others, used his own ISP provider, deleted his browsing history and accessed the pornography out of hours.

Nevertheless, the plicy was clear that the laptop was the employer’s property, limited use of the laptop to business purposes and expressly forbade access to pornography.

In contrast, a group leader at a childcare centre breached an anti-gossiping policy and was unsuccessfully terminated. In the case of Tara Davies v Hip Hop Pty Ltd T/A Hippity Hop Child Care [2011] FWA 776, the employer’s express policy warned of instant dismissal for any back biting. “Back biting” was not defined. Had the policy defined and differentiated minor gossip from deliberate and malicious gossiping, the policy could have been effective. In any event, the gossiping itself was not worthy of instant dismissal but the decision in both cases reaffirms the rules around the development, implementation and enforceability of policies and procedures, namely:

1. Policies and procedures must be capable of being reasonable and lawful directions.
2. To be reasonable and lawful, the policies and procedures must:
    2.1 not contain unlawful content;
    2.2 be clear with essential elements defined;
    2.3 have their purpose made clear and be reasonable; and
    2.4 be understood by the employees.
3. The implications of breach must be understood.
4. All workplace behaviour policies should be linked to a code of conduct.
5. Employees must be inducted and regularly trained in the policies and procedures.

In the Davies case, the policy was not defined and was a “one size fits all” policy. It permitted no graduated response to misconduct. It was patently unfair. In the Griffiths case, the policy defined key elements, was clear in its purpose and could not be misunderstood. The termination under the policy was upheld.

It really is simple to change a business culture to a “good behaviour model” if the policies and procedures are appropriately drafted, trained upon and enforced. All you need to do is follow the steps above.

Andrew Douglas is the Principal of Macpherson + Kelley Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.