Drafting workplace policies and procedures can be a daunting exercise – it requires a careful balance of including (or omitting) information that is necessary from a legal standpoint, whilst still remaining easy to understand and follow for employees.
Drafting workplace policies and procedures can be a daunting exercise – it requires a careful balance of including (or omitting) information that is necessary from a legal standpoint, whilst still remaining easy to understand and follow for employees.
Getting this balance right is key to ensuring that, when workplace issues arise, your policies and procedures can be relied upon as a proper basis for any necessary employee disciplinary action. A policy that is drafted with no consideration of an employer’s legal obligations or a policy that is too technical can result in it being unenforceable or unable to be properly complied with.
In a recent decision which has resulted in an employee being reinstated to their employment, the Fair Work Commission (FWC) has cautioned that dismissals based on policies that are too legalistic and complex for employees to understand may result in the dismissal being unfair.
In the matter of Al Bankani v Western Sydney Migrant Resources Centre Ltd [2023]FWC 557, the FWC heard an Acting Specialist Intervention Services Manager’s claim that she had been unfairly dismissed for breaching her employer’s "Policy& Procedure Manual”. The employee had deleted phone records from awork phone before commencing a period of leave.
The employer was a not-for-profit company that provided services to the Western Sydney migrant community. It also was a sub-contractor to another settlement services provider, providing specialised and intensive services to support refugees classified by the Commonwealth as having high or complex needs (“the Tier 3 Program”). The employee was the sole employee responsible for providing these services to “Tier 3” clients.
As part of this responsibility, the employee was provided with an “on-call phone” (in addition to her normal work phone) which was intended to receive after-hours calls for urgent client matters or emergencies.
Over the Christmas 2021 period, the employee took a period of leave during which another employee was to take responsibility over the on-call phone. However, before commencing her leave, the employee deleted call and message records from the phone.
The employer summarily dismissed the employee as a result of this conduct, stating that it was a breach of its Policy & Procedure Manual which:
(a) prohibited the deletion of data without specific authorisation; and
(b) required employees to use its IT systems consistently with the employer’s contractual obligations. In this regard, the Tier 3 Program contract, which was apparently available on the employer’s database, required the employer to maintain records for at least seven years and prohibited the destruction or disposal of records relating to Tier 3 clients.
The dismissal occurred despite the employee’s statements that clients rarely called the on-call phone (preferring to call her normal work phone instead) and the data alleged to have been deleted was therefore on her normal work phone and also on the employer’s database, noting that she was obligated to record same on the database.
The employee also insisted that she had never been directed not to delete telephone data, nor was she provided training or policy documents – or even made aware of the contract – that prohibited such conduct.
The FWC was satisfied that there was a valid reason for the employee’s dismissal. It found that deleting or erasing the contents of an employer-issued device without authorisation had obvious potential to cause damage by depriving the employer of the opportunity to inspect the device and also compromising its record keeping systems.
However, the FWC considered the dismissal to be harsh, unjust and unreasonable given that:
- the terms of the policy were long, complex, legalistic and did not fairly and clearly put the employee on notice of the employer’s requirements – it found that the terminology was more suited to commercial or government contract than for use by workers in a migrant assistance agency;
- even though the employee had signed the manual, the FWC held concerns that it was actually read or understood. This was particularly noting that English was not the employee’s first language and there was little evidence that the employer took steps to ensure that employees read and actually understood the policy or that employees had even seen the contract that was referred to (noting other employees including the employee’s supervisor gave evidence of not having seen it);
- the employer’s procedures regarding mobile phones and IT was haphazard – given the seriousness with which this conduct was treated, the FWC thought it inconsistent that the employer did not have a process for backing-up or preserving mobile phone data;
- the employee’s explanation for why there were no Tier 3 records on the phone was rational and plausible;
- the consequences of the conduct were not serious, noting that there was a very low risk or likelihood that the phone contained client records; and
- the employer had access to the employee’s normal work phone and its database that would have probably proven or disproven the employee’s explanation, but it did not investigate those items further.
The FWC found that, even though there was a technical breach of the Procedure Manual, the policy was too complicated for its context and bore little connection to what was happening in practice. It stated that employer policy documents and manuals “must be accessible, understandable and reasonable in their terms” – in this case, they were not.
As a result, the FWC found that the gravity of the employee’s conduct was such that she should not have been dismissed. It therefore ordered she be reinstated to her employment with compensation for her lost pay (with a 25% reduction in acknowledgement of her misconduct).
Lessons for employers
This decision serves as a caution to employers of the importance of having policies and procedures that are accessible, understandable and reasonable in their terms. Policies and procedures that are not drafted this way may be deemed to be unenforceable or unreasonable and therefore not a proper basis for disciplinary action.
If you need assistance with drafting your workplace policies or procedures, or making sure that your existing ones are clear and easy to understand, then Workplace Law is able to assist – feel free to reach out on (02) 9256 7500.
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.
