Consistency Counts

HR Staff n’ Stuff are huge advocates of having clear and appropriate policies in place to protect both the employer as well as your employees.  They establish standards of behaviour and allow for consistent and fair responses from employers if they are breached.  If established correctly, communicated clearly to employee and consistently adhered to, they are a valuable asset when an employer needs to defend themselves in an unfair dismissal claim.  However, use them inconsistently and it will cost you!

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The Case
The Fair Work Commission recently heard a case in which an employee was dismissed for breaching four separate policies.  The termination of employment was deemed unfair because the employer’s policies we inconsistently enforced.   Oops!  The case that was considered went something like this. The employee, Ms Allen, was called to a meeting with her employer and advised that she had four separate breaches of workplace policies, namely:

• using her mobile phone and reading magazines;
• having pink dyed hair;
• sexual misconduct; and
• defaming the Respondent.

Let’s take a look at why these issues were not considered reasonable grounds for dismissal:
 
Pink Hair, No Fair
While the employer had policies that covered the use of mobile phones while working, engaging in activities that were not work related (i.e. the magazine) and a dress policy that covered extreme hair colour, all were deemed invalid reasons for dismissal.   In short, the Commissioner determined that the penalty was too harsh and that a different form of disciplinary action would have been more appropriate.  In fact, there was evidence presented showing another employee with coloured hair had not been disciplined or even spoken to about breaching a dress code policy.

Poor Choices
In this aspect, Ms Allen was a secondary contributor to some poor behaviour.  A colleague had made lewd and vulgar comments to a customer to which Ms Allen had contributed simply by saying something like “Oh yeah” as a form of agreement.  As no action against the employee who actually made the comment was taken, the FWC noted that the respondent’s zero tolerance for sexual misconduct in the workplace was not enforced in a consistent manner.  Therefore, it was not a valid reason for dismissal.  

Defamation by any other name
The Respondent claimed defamation because Ms Allen told a co-worker that she was seeing a lawyer because the employer “f**ked my shoulders” – this related to an ongoing workers compensation claim that was being escalated to a common law claim and was a statement based in fact.   She added that the business was better run by its previous owner and speculated that it would end when its lease ran out. When the employer confronted her about the conversation, she denied it had occurred.   Outside of defamation, the employer claimed it breached a policy that covered gossiping about work matters as well as a policy that related to confidentiality around such matters.  The Fair Work Commission determined that advising a truth about an injury – no matter the language – was appropriate when it came to explaining why certain tasks couldn’t be performed.  While it was deemed inappropriate to denigrate the management skills of the respondent, again it was considered a conversation by the Fair Work Commission but it was not defamation nor was it gossip and it wasn’t a valid reason for dismissal as such conversations were consistent with general work practices and the policy about confidentiality was not reasonable.  The employee lying about it when confronted however, would have been reasonable grounds but this was not cited as a reason when termination was advised.
 
The Decision
The employer was directed to pay the employee 15.5 weeks pay (less 30% for misconduct) as the dismissal was harsh, unjust and unreasonable.  Ouch!
 
What can we learn from this?
The bottom line here is that if you are wise enough to have clearly stated, well communicated, legally applicable policies in place then you still must apply them consistently.  You can not use them to terminate an employee for any behaviour that you continue to tolerate from others.  You need to address breaches in a timely and fair manner.  Importantly, you also need to apply a consistency to your disciplinary actions – it is not always fair and reasonable to move straight to termination of employment. 

You may have to provide evidence of allowing an employee a reasonable opportunity to make changes or improve behaviour – especially when it comes to minor infractions or where you have allowed other employees the chance to modify behaviour.   You must assess whether or not the dismissal is fair, just and reasonable?  Have you consistently applied the policy across all employees?  If you don’t, you are going to find that the FWC is not going to determine a case in your favour!

Do you have policies in place? Are they current? Have you actually implemented your policies or do they sit in a drawer gathering dust?  Do they support a positive and engaged workforce or do you simply want them in place just in case you need them for legal reasons?    If you want effective, legally compliant policies that all employees know, understand and operate within,  contact HR Staff n’ Stuff now to discuss your options.  

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