Policies? I don’t need that cr*p

Design 20

If you’re employing staff then you need policies, HR Policies are general statements that serve to guide decision making and communication with employees. They generally serve three purposes;

  • To reassure employees that they will be treated fairly and without prejudice
  • To assist managers and HR to make consistent decisions
  • To give managers and HR the confidence to resolve problems, knowing that they are following the policy and procedure set out by the organisation in a consistent manner.

You may think that as ‘sensible adults’ your employees know how to behave – but unfortunately it’s not always the case. The mix of backgrounds, cultures, upbringings, education and experiences see all of us develop different ideas of what is and isn’t acceptable, and how to conduct ourselves at work. They can cover simple matters such as how an employee notifies you if they’re off sick, or what is acceptable work-wear. Through to more serious matters such as alcohol & drug consumption and discrimination.  Without clear guidelines, employees could inadvertently do the ‘wrong thing’.

Policies also detail how issues will be managed, so that there are clear consequences for unacceptable behaviours or poor performance.  Even if certain behaviours are obviously not acceptable, there could be confusion over their severity.  What you think is a ‘sackable’ offence might be viewed by an employee as something that just warrants a warning.  This type of confusion can easily lead to unfair dismissal claims, so eliminating confusion reduces the risk of such a claim.

Employee handbooks or policy manuals not only assist with communicating your standards, values and behaviours to employees but it also protects your company from possible legal action. For example if you terminate an employee for inappropriate behaviour and conduct the first thing that a Commissioner will ask is what did your Policy say and was the employee aware of it? So obviously there is no point having policies if you don’t implement them and get them signed off with your employees.

Policies should provide all the information that new (and some established) employees need to know.  They are a great tool in the induction process to ensure new starters are on the same page as you from day one.

With many small business employing only a handful of staff its easy to think that HR policies aren’t needed.  But in some cases 1 or 2 staff members could represent 30% or more or your ‘workforce’, and a simple issue could become a major problem.  Also, the fines you could face as a result of an unfair dismissal claim or vicarious liability ruling are the same as those faced by larger employers, and could mean the end of your business.

At the end of the day you may never need to rely on your HR policies – but like home and car insurance, it’s better to have them and never need them, than not have them when you do.

These decisions from the Fair Work Commission should act as a warning to employers about the importance of making your policies and processes around dismissals absolutely watertight.

Smarter Insurance Brokers (SIB), a small business based in Port Macquarie, were experiencing performance issues with one of their brokers. Relying on what was perceived to be their unfettered right based on a termination clause in the employee’s formal contract, SIB made the decision to terminate employment with four weeks notice, but without supplying any reason for doing so nor compiling any written documentation around the process undertaken.

Because the termination clause in the employment contract suggested that either party could terminate employment with 4 weeks prior notice, it appeared to SIB that termination was a straight forward and defensible process – but it certainly didn’t end there.

After the employee had left, SIB discovered downloaded pornography on the employee’s company supplied laptop. While this may have appeared at first to be the nail in the coffin for the dismissal, closing any gaps in the documentation of the termination, this wasn’t to be the case. Instead, despite the employee admitting to using his work computer to store and download pornography, the Fair Work Commission found that SIB did not have a particular policy in place that prevented the employee doing this, and regardless of the downloaded pornography, the original dismissal was not related to it and did not follow proper procedure.

As a result, the Commissioner awarded the employee $10,000 to cover 8 weeks remuneration.

The Fair Work Commission found a Bunnings employee was unfairly dismissed following a brawl with his co-worker because the company had failed to follow correct procedure.

The fight started when Michael Fitzpatrick told a colleague to “go and get f—ed” and ended in a physical altercation between the two. The incident was partly overheard by other Bunnings employees and the pair were suspended on the day.  But in the investigation following the fight the Commissioner was not satisfied all the allegations were properly put to Fitzpatrick and in particular he made the observation that the allegation should have been put in writing.

Vitale says the case shows even where employers think they have a clear cut case for termination, the commission will still look at the process that is followed prior to termination.

“The employer, particularly a large employer with a dedicated human resources department, needs to ensure its process is spot on,” he says.

An order for compensation was made at a later date.

In the case of Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097, Fair Work Australia determined that Linfox failed to have a social media policy in place to govern the conduct of its employees on social media websites such as Facebook and Twitter. The company was found to have unfairly dismissed Mr Stutsel.

Mr Stutsel had written derogatory comments on his Facebook account about two of his managers. When the managers visited Mr Stutsel’s Facebook account and complained to Linfox, an investigation was conducted and Mr Stutsel was terminated for serious misconduct.

If Linfox had had a social media policy at the time of the misbehaviour and that policy had been clearly communicated to Mr Stutsel, his conduct may not have occurred or Linfox may have been justified in dismissing him.

Linfox was ordered to reinstate the employment of Mr Stutsel.

As an employer, are your policy and process documents really up to scratch when it comes to workplace discipline and cases where a dismissal may be unavoidable? If you’re not sure, it’s definitely time to check. The People & Culture Office can get you started with the fundamentals with their People & Culture Foundations pack, contact us today for a quote.

Based in Kalgoorlie, The People & Culture Office is an independent HR Consultant who can partner with you to offer a one stop HR solution, we only charge you for the work we perform; no contracts, no annual or monthly fees, just quality service. Click here to learn more