By Mike Toten Freelance Writer
It is insufficient to implement a workplace conduct code or policy without explaining it carefully to employees and ensuring that they are aware of it and understand it. For this reason, a recent dismissal was found to be unfair even though an employee had clearly bullied a co-worker and showed little remorse afterwards.
Facts of case
A truck driver with 20 years service had repeatedly accused a co-worker of “sucking the boss’ d*ck” (accompanied by hand gestures) and being unable to take a joke, in front of other co-workers. This continued despite the co-worker threatening to report him, which eventually he did. The employer dismissed him for serious misconduct, claiming he had breached its code of conduct and several workplace behaviour policies, and also shown little remorse for the misconduct. After being told to stop, he modified his behaviour but it was still offensive. He appeared to not understand why his conduct was offensive and tried to shift blame for it onto others.
Overall, the Fair Work Commission (FWC) found that the employer had a valid reason for dismissal. However, it also found that the employee was unaware of the four policies the employer claimed he had breached. The code of conduct had only been discussed at a staff meeting, with notes left behind for employees to collect. The FWC described this as “a tick and flick exercise designed to demonstrate compliance”, but insufficient for employees to properly understand what “inappropriate” or “non-compliant” conduct really was – especially given there were language barriers in some cases.
With the other policies, the employer had kept no records and appeared to assume that because they had existed for some time, employees knew about and understood them. Overall, the FWC believed that the employer had not done enough to ensure that employees were aware of all the policies. What the employer should have provided was “a culturally and linguistically appropriate interactive training course that dealt with not just the 'what' but also the 'why'." The FWC speculated that, had this occurred, the employee may have behaved differently.
Decision
Taking into account the above factors, the employee’s 20 years of service, his age (62), limited employment prospects (he lived on Christmas Island) and previously unblemished record, the FWC found that his dismissal was unfair. A remedy will be determined at a later conference.
What this means for employers
It is not enough to issue workplace policies and codes of conduct to employees and then demand that they comply with them. You must also take proactive steps to ensure that each employee clearly understands what each policy actually requires them to do. This may include providing specific examples of appropriate and inappropriate conduct, and taking into account any language and other cultural barriers within the workplace.
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