The most effective way of ensuring a productive, harmonious and safe workplace is to create a workplace culture that fosters and nurtures the core values, standards and behavioural and performance requirements of the employer. Policies are important in in this regard as they helps reinforce and clarify the standards expected of employees and allows the employer to manage staff more effectively.

However, having workplace policies alone is not enough. The organisation needs to “live and breathe” its values. If the intent and meaning of the workplace policies are not clearly communicated across the organisation, they are likely to be of little practical effect and the employer will have difficulty in relying on the workplace policy. Worse still, if employees have never received the policy, training on the policy and/or the policy is not routinely updated and enforced, it will be almost worthless. In particular, in cases of unfair dismissal for example, the Fair Work Commission will consider whether employees have knowledge of a policy and whether they have been trained on a relevant policy when considering if a dismissal was harsh, unjust and/or unreasonable especially in circumstances where an employer relies on the workplace policy to terminate an employee’s employment.

The importance of training employees and ensuring they are aware of company policies is highlighted in the decision of Rosario Condello v Fresh Cheese Co (Aust) Pty Ltd [2018] FWC 2025.  In this decision, the long-standing employee was summarily dismissed for using his mobile phone in a food production area. Specifically, the employee had walked around to a storage room to take a call from his wife who had been looking after his ill mother-in-law.

Consequently, the employer sought to rely on its ‘zero tolerance’ mobile phone policy to justify the dismissal. However, evidence revealed that the food production areas where mobile phone use was prohibited, were poorly defined, and the employer could not find any evidence to suggest the employee had attended the training session reminding all employees of the prohibition,  which had taken place only a week prior and/or whether the employee had been provided a copy of the company’s policies. As such, the employee admitted he knew it was against the rules to use his phone at work but did not know that he could be dismissed without notice for it.

Commissioner Katrina Harper-Greenwell observed that the company did not consistently apply its rules as defined in the employee handbook and found that even had she been satisfied that the employee had attended the recent training, she would not have been satisfied that the employee’s phone use constituted a valid reason for dismissal as the event was poorly organised and there was insufficient detail provided to employees. Furthermore, the Commissioner stated “a company cannot simply produce policies and procedures and expect to rely on them to defend a claim if there is no evidence to support that its employees have been made aware of those documents, trained in the content of the documents and provided with access to those documents”. She further noted that “the onus is on the employer to adequately operationalise their policies and procedures if they seek to rely on them defend an unfair dismissal application”.

Statutory Obligations

Furthermore, and of significant relevance, all employers have obligations to ensure their employees’ work health and safety. In this regard, the relevant safety legislation in each state requires that employers take all steps reasonably practicable to ensure the health and safety of employees. In this regard, if an employer does not have appropriate work health and safety policies AND has not provided appropriate comprehensive training on work health and safety for its employees, it will be unable to establish it has taken all reasonably practicable steps to prevent the injury and will be found guilty of breaching the legislation. In addition, a similar obligation applies in relation to ensuring employees are not sexually harassed, bullied or discriminated against at work. If an employer does not have policies dealing with these matters, they will be unable to defend claims made in this regard. In addition, the existence of relevant policies is not sufficient to meet an employer’s onus in this regard. It must be able to show that it has provided appropriate, relevant and recent training on these matters.

Prevention is the best medicine

At the end of the day, preventing an accident, injury, absenteeism, performance issues and legal claims is far better than dealing with the alternative. In order to have engaged and committed workforce, it is vital to train employees, in a practical manner, on the relevant behavioural and operational requirements of the role.

To this end, employers should provide hands on practical training to employees on work health and safety and appropriate workplace behaviours, as well as the relevant company policies. This will ensure that employees know what is expected of them and how to behave. It will also set the values and cultural standards for the organisation and prevent inappropriate behaviours and hopefully accidents and injuries. However, if an employee behaves in a manner that is unacceptable, effective policies and appropriate training will assist the organisation to deal with any issue effectively and efficiently.

In addition, it is vital that managers are provided training on the most important part of their role – managing other people. An employer would not hire a plumber to do plumbing work without relevant practical training. The same goes with any role, but when it comes to managing staff this seems to be assumed. We encourage all our clients to consider the benefits that will be achieved by ensuring your managers are appropriately skilled to manage. This means training them in performance management. If managers know how to manage appropriately, the organisation will have less absenteeism, less bullying, more engaged staff and when it comes to termination, the significantly reduced risk of legal claims.

Best Practice

The above decision highlights an employer’s responsibility to ensure not only that all policies and procedures are followed and enforced but also that employees are provided a copy of the policies as well as appropriate communication and training on the policies.

Accordingly, in terms of best practice, we recommend employers undertake the following:

  • Audit their policies and procedures to ensure that the employer has appropriate policies in place.
  • At induction or orientation, ensure employees receive all up to date policies and procedure documents in hard copy and are told where they can be accessed online. Have the employee execute an acceptance document confirming receipt of the policies. Ensure these records are kept by the employer as part of its record keeping.
  • Ensure policies are regularly reviewed and updated. Most importantly, ensure any changes to the policies are well communicated and all updated policies are provided to employees.
  • Provide regular training on workplace policies to ensure employees understand the policies and the consequences that follow for breaches of the policy. We recommend providing training on workplace policies on an annual basis, especially in relation to WHS and Appropriate Behaviour in the Workplace.  Employers should keep an attendance register or log.
  • Provide managers hands on training in performance management.
  • Employers should ensure they are consistently applying the policies across the organisation.

If any of our readers require further information in relation to any aspect of this alert or need specialist employment law advice please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article