Workplace Policies – an integral part of good workplace practice and a potential dispute avoidance tool

Posted on Jun 24, 2017 by Rebecca McKenzie   |   Categories: Employment Law

What is a workplace policy?

A workplace policy is a set of rules and principles guiding expected behaviours of employees.

Policies can cover areas such as bullying and harassment in the workplace, social media use and work, health and safety, (WHS) to name just a few.  The policies should be customised to suit the particular workplace and can help to make for smoother day to day operations of your workplace by providing a frame of reference as to how issues and challenges can be overcome.   In addition, having well-drafted policies can ensure that employers are compliant with legislation, regulation and industry codes of practice relevant to their business.

There are many benefits to having well-written workplace policies. Aside from often helping an employer to defend itself against an unfair dismissal claim, WHS prosecution or vicarious liability claim, policies can demonstrate that an organisation is operating in an efficient and businesslike manner. Furthermore, they can foster stability and ensure uniformity and consistency in decision-making and operational procedures.

 

Factors that make a good Policy

A good workplace policy is one that:-

  • is written in plain English,
  • clearly states the aims and expectations of each policy area,
  • is consistently applied across the workplace, and
  • clearly states to whom and in what circumstances the policy applies and the consequences of non-compliance.

 

Furthermore, a mechanism for review and modification of the policy is crucial, so as to ensure that they are current and in line with any changes within the organisation or any change in relevant law.

Consistent application is very important, from the point of view of equal treatment of employees.  In 2014, the NSW Industrial Relations Commission reinstated a public servant after it was found he was treated more harshly than another colleague for the same behaviour.  During a Christmas party, one employee admitted to groping the breasts of several colleagues and was sacked; another employee who was also allegedly involved in sexual harassment was only demoted. Consistent application of policy is crucial, otherwise allegations of favouritism or discrimination may arise.

Also, communication is key – the policy cannot be successful if it is not adequately communicated to those who are affected by it. This communication is an ongoing process and must be re-initiated wherever the employer makes changes to their policies. Case law examples in recent years establish that without clear and ongoing communication, policies may not be effectively enforced.  An often cited example is seen in the case of Agnew & Ors v Nationwide News Ltd, in the context of employees drinking heavily in their mid-day break. In this organisation, a blind eye had been turned to drinking during work hours for many years and it was only in recent months prior to the employees’ termination for their drinking, that the alcohol tolerance policy changed. As a result of the policy being found to be inadequately and unclearly communicated, four employees were reinstated. The clear take-home message of this case is that where policies are not clearly communicated, employees may not be able to be disciplined or dismissed for contravention of the new policy.

 

Once policies are clear, consistently applied and well communicated, how does an employer go about enforcing them?

Disciplinary policies must contain a clear process for enforcement and where applicable, comply with all relevant legislation, awards and workplace agreements. Generally, in order to provide due process and fairness, the use of warnings is appropriate to encourage changes in behaviour. Where serious misconduct is engaged in by a worker, a clear description of when summary dismissal is warranted should be provided in the policy.  Recent cases have determined however that even where serious misconduct is found, adherence to procedural fairness is required, in terms of employers putting an allegation to the worker, providing the worker with the opportunity to reply, allowing the worker to have a support person present, and asking the worker if there was any relevant circumstance that will inform the decision.

 

In conclusion, in order to provide clear guidance on the expected behaviour and interactions in your workplace, it is essential to maintain consistent, clearly written, legally compliant and well communicated policies to your employees. If you need to discuss new policies or procedures, or issues in enforcing breaches of a policy, contact the experienced employment law team at Baker Love Lawyers.