Enforcement of workplace policies
February 24, 2015
Two recent unfair dismissal decisions in the context of breaches of workplace policies illustrate that for policies to be enforceable, they must be clear as to consequences, be effectively communicated and enforced consistently. It is a good idea to periodically review your policies and remind staff of their obligations. Employer obligations must also be upheld.
Mobile telecommunications policy
Luke Faulkner v BHP Coal Pty Ltd  FWC 9330
The applicant was employed as an operator at the Goonyella Riverside Mine. At 3:35am on 23 January 2014, the applicant was in a rear dump truck being loaded by a shovel. The truck was stationary and the park break was on. The process of loading the truck took approximately four minutes and completion of this process was signalled by a beeping noise. During this time, the applicant turned on his phone and posted the following comment on Facebook:
‘Zachary J……..your lucky I’m here to get your truck out of the bog you got it into.’
An employee at the mine site was a Facebook friend of the applicant and she reported the post during that shift to management.
The respondent considered the applicant’s conduct to be in breach of the Goonyella Riverside Mine Mobile Electronic Device Procedure and the applicant’s employment was terminated on that basis.
The applicant admitted that he used his phone to make a Facebook post, however, he did not have his phone with him deliberately, and only discovered it while looking in his bag for a snack and for something to read to avoid the onset of fatigue. The applicant submitted that the phone was used for the Facebook post while the truck was stationary and that he had turned the phone off again before operating the truck.
The applicant alleged that the Mobile Electronic Device Procedure was not clear that a breach would result in dismissal, nor did it indicate what steps an employee should take if, unintentionally, they brought their phone onto site which is potentially in breach of the procedure.
The termination was considered harsh, unjust and unreasonable in circumstances where:
- In terms of the policy:
- It was not clearly written or implemented as a ‘zero tolerance’ policy, with dismissal the only outcome
- A strong and clear implementation and application of the procedure was wanting
- There had been varying disciplinary responses applied across employees in breach
- In terms of the applicant:
- He had nearly six years of service with the respondent
- His wife was employed with the respondent and he would need to move away from her to find another job.
The applicant’s employment was reinstated.
Drug and alcohol policy
Emmanuel Young v Janart Holdings Pty Ltd T/A Stewart Automotive Group  FWC 8410
The applicant was employed with the respondent for a period in 2010 then recommenced employment as a Used Vehicle Sales Consultant at the respondent’s Sutherland site in August 2012. In September 2013 the applicant was promoted to the role of Sutherland Used Vehicle Manager.
On 28 June 2014, it was alleged that the applicant offered cocaine to a young female colleague. She accepted the drug offer, which was observed by another colleague who then reported it to management.
As a result of this alleged event, the applicant was dismissed with effect from 21 July 2014 (with one weeks’ notice).The respondent’s drug and alcohol policy was contained in the Employee Handbook. Among other things the policy outlined that:
- Employees are not permitted to consume alcohol or any illegal substance, which may include marijuana, opiates or amphetamines, during working hours or on the premises at any time.
- The presence of such substances on the premises is prohibited.
- It is prohibited for employees to be on the premises if under the influence of alcohol or any illegal substance.
- Company vehicles are not to be driven by anyone under the influence of alcohol or any illegal drug.
The policy provided that any breach may result in disciplinary action including summary dismissal.
The applicant consistently denied the allegations against him entirely. The applicant’s evidence was that he was aware of the employer’s drug and alcohol policy. He agreed that consumption of an illegal substance at the work premises was unacceptable and a valid reason for dismissal. The applicant said that the real reason for the dismissal was because there was not enough work for both himself and another employee, a Mr Cooke. He also said that Mr Cooke was favoured because he was a personal friend of the manager.
Significant evidence from various witnesses was put before the Commission on behalf of the respondent. The applicant was observed driving off in a car with the female colleague and the female colleague gave evidence. It was noted that she was not the one to report the matter and had no ulterior motives.
Commissioner Cargill ultimately accepted that the events occurred largely as alleged and in contravention of the drug and alcohol policy. The dismissal was upheld and it was noted that: ‘Even if the respondent had been trying to replace the applicant, which I don’t accept it was, it seems it would be rather farfetched to have done this by way of some conspiracy with three of its junior employees to make the allegations about the applicant’s conduct rather than by means of a straightforward redundancy’.
Authored by Emma Reilly, Partner, Canberra.
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