The Fair Work Commission has resoundingly stated that HR managers should not inform employees about company policies as a “tick and flick” exercise.

Recently an employer harshly sacked a worker who had no understanding of his unacceptable behaviour when he bullied a colleague for supposedly “sucking up” to their manager.

The employer dismissed the 62-year-old truck driver, who had 20 year’s service, for serious misconduct after an investigation confirmed he had on a number of occasions accused a co-worker of “sucking the boss’s dick” and told colleagues in front of him that the co-worker could not take a joke.

The employer also considered the truck driver’s lack of remorse in deciding to dismiss him for breaching its code of conduct, anti-discrimination and harassment procedure and psychosocial safety and standards of behaviour policies.

Considering the truck driver’s unfair dismissal claim, the Commission first found that his “reprehensive” bullying behaviour – including his comments and accompanying hand gestures “about sucking up to the boss” – did not of itself warrant dismissal.

“However, I am also considering [his] reaction to being asked to stop his comments, which was to engage in different but still inappropriate behaviour towards [the co-worker] in lieu of an apology…I am also taking into account the fact that I find that while there was some level of remorse, it was poorly conveyed. 

“I find this because it was interspersed with statements that suggested the [truck driver] was not really sure what he had done wrong and statements that appeared to seek to shift blame to [the co-worker]. 

“Given all of this, it is understandable that [the employer] had serious concerns about [his] behaviour and as a consequence, I find that [the employer] had a valid reason for termination of [his] employment.” 

Toolbox meeting inadequate

The Commission considered the truck driver’s age, unblemished work record and the lack of job opportunities on the island before turning to consider the four policies the driver allegedly breached.

“The [employee] says that it is unreasonable to require him to abide by the provisions of policies of which he is unaware and that he was unaware of all four policies named,” the Commission said.

The code of conduct had been discussed at a 30-minute toolbox meeting in September last year, after which the company left copies of the presentation for workers to collect.

“This does not appear to me to be a process and a timeframe that would be conducive to explaining and promoting serious workplace behavioural requirements to employees, particularly in an environment where there may have been some language barriers…

Regrettably, it has all of the hallmarks of a ‘tick and flick’ exercise designed to demonstrate compliance.” 

As for the three other company policies, the Commission said the employer “was restricted to essentially saying that [the policies] had been around for a while so they assumed that they had been rolled out”. The Commission was not satisfied it had actually happened.

Lack of exposure to policies “a contributory factor”

The Commission said it was “particularly concerned” about the psychosocial safety policy.

“In my assessment – which was not contradicted by [the employer] – this is likely to be a fairly recent policy, created in light of the recent changes to the Western Australia Work Health Safety legislation which have sought to bring the issue of psychosocial hazards at work to the fore.” 

“Given that it is likely to be a recent policy, I would have expected some ability for [the employer] to demonstrate that it had rolled the policy out but this was not the case. 

“It is my finding that on balance of probability, the employees of [the employer] on Christmas Island are not likely to be familiar with the Psychosocial Safety Policy, the Standards of Behaviour Policy and Anti-Discrimination and Harassment Procedure.” 

The Commission considered what may have happened if the employee had been properly trained in acceptable workplace behaviours.

“Not through a tick and flick exercise but through a culturally and linguistically appropriate interactive training course that dealt with not just the ‘what’ but also the ‘why’.” 

“I am satisfied that this may have changed his behaviour. 

The Commission said it may not have changed his underlying personal views but if the employee  was working in an environment where everyone clearly knew the standards that were expected, why they were expected and the consequences for breach, the likelihood of the employee engaging in the behaviours that he did would have been reduced.

An “element of injustice”

While the employer had a valid reason to dismiss the truck driver, the Commission nevertheless said that “[his] length of service with no history of discipline for similar issues, his age and employment prospects lean towards a finding that the dismissal was harsh in the circumstances”.

“Additionally, there is the issue of [his] lack of exposure to and understanding of the policies cited in his termination documentation.” 

The Commission said that this added an element of injustice to the termination.

Conclusion

Make sure that all employees are well aware of the policies and actually understand them. Merely posting the policies, or saying they are available in a policy book, will not satisfy the Commission the employee is aware of actually understands them. That is critical to making sure disciplinary action is effective and complies with the Fair Work Act.