Australia: The necessity of having effective workplace policies – Potential risks for employers

All employers should have a series of workplace policies to assist with managing employee obligations and to reduce exposure to potential liabilities.

It is insufficient for employers to attempt to control the requirements of their employees just by way of their employment contract or, if applicable, by the relevant modern Award or other registered workplace agreement.

There is an increasing diversity of recent cases involving disputes with employees which have considered the effectiveness and deficiencies of the employer's workplace policies. Such cases include an increasing number of unfair dismissal and adverse action claims. Unfortunately, in many of these disputes, the employer could have avoided liability for significant damages by checking that it had the correct policies in place and regularly addressing whether such policies provided adequate protection.

This article is designed to assist employers with understanding the necessity and various benefits of having policies and the additional measures which can be taken to reduce potential risks flowing from such policies.

Why Have Workplace Policies

The benefits for implementing effective workplace policies, and regularly ensuring that they are up to date, are significant and numerous.

Such advantages include the following:

  1. Providing clear and concise information to employees about their expected standard of behaviour and performance at the workplace (as well as special events and social functions) and the consequences which may apply;
  2. Providing an employer with a basis for defending potential liabilities such as being able to show that an employer has an established and objective process of taking reasonable management action in dealing with particular workplace incidents (especially regarding issues with workplace health and safety, sexual harassment, workplace bullying and anti-discrimination);
  3. Attracting and retaining key employees due to the additional advantages and benefits provided by particular policies (for example, additional entitlements of parental leave, the availability of valuable resources such as a motor vehicle);
  4. Educating new employees on essential information for the various requirements of working for a new employer;
  5. Providing the employer with the flexibility of being able to change employee obligations and introduce new requirements on an ongoing basis compared with contractual employment terms which are much more difficult to vary;
  6. Providing further details of the procedures and rules involved in implementing a contractual term (for example, providing the employee with the practical requirements of using and returning company resources and the operation of grievance resolution procedures); and
  7. Providing employees with a clear, consistent and objective framework which will be used for dealing with particular situations and which will show that the employer's actions have been exercised fairly, systematically and equally.

Essential Workplace Policies

The extent and types of workplace policies which should be implemented will depend upon the nature of the particular business, its operational requirements and key industry considerations.

However, there are certain fundamental policies which should be considered for all workplaces including the following:

Type of Policy Objectives of the Policy
1. Anti-Discrimination and Equal Opportunity Policy
  1. To explain the necessity of the equality of opportunity for all employees at the workplace.
  2. To clearly describe events of unlawful discrimination which will not be tolerated.
  3. To set out the procedures which will be utilised as a result of any complaints of discrimination or other vilification at the workplace.
  4. To provide details of the reporting and complaint procedures (and any other employer resources) which are available to employees if they believe they have been subject to (or a witness to) any forms of discrimination or vilification.
  5. To define the possible consequences to an employee engaging in unsatisfactory conduct.
2. Code of Conduct
  1. To provide a detailed description of the required standard of conduct of employees in performing their duties and interacting with others at the workplace.
  2. To describe special workplace requirements such as appearance, hygiene, dress, behaviour, the taking of breaks, smoking and times of attendance at the workplace.
  3. To set out the consequences if an employee breaches these obligations.
3. Drug and Alcohol Policy
  1. To provide a clear description of the requirement for employees to participate in a healthy and safe work environment.
  2. To detail the potential adverse effects of employees being affected by alcohol or drugs at the workplace.
  3. To detail the requirements of an employee's obligations regarding the use of, and being impaired by, alcohol and drugs at the workplace and during work functions.
  4. To provide, in appropriates workplaces, the requirement for the employee to undergo regular testing for the existence of alcohol and drugs (including the possibility of random testing being conducted) and the employee's consent to these tests.
  5. To clearly specify the consequences of a breach of these requirements and if the employee is dishonest in providing any details.
4. Email and Internet Usage Policy
  1. To provide clear directions to employees of their obligations when using internet and email resources supplied by the employer and the range of activities which are forbidden.
  2. To inform employees that their use of email and internet resources will be monitored (and appropriate action taken depending upon any inappropriate use).
5. Grievance Resolution Policy
  1. To provide employees with a clear explanation of the objective procedures, support and resources which are available if an employee has a grievance regarding their employment.
  2. To show employees that they will be fairly treated following a grievance complaint.
6. Parental Leave Policy
  1. To provide a clear explanation of the employee's entitlements to take parental leave, including the ability to access relevant legislative rights.
  2. To set out in further detail the procedural requirements of taking such leave.
  3. To specify the details of any additional entitlement to participate in an employer's paid parental leave policy (if one exists).
7. Performance Review Policy To provide information to employees about:
  1. the timing of performance reviews;
  2. the purpose of regularly conducting these;
  3. the requirements for the employee's active participation; and
  4. the nature of the consequences of such a review (including increased salary package) being at the absolute discretion of the employer.
8. Privacy Policy
  1. To clearly describe to employees their requirements when handling relevant records of personal information.
  2. To assist employers with complying with the Privacy Principals and reducing the risk of any liability as a result of an employee's conduct.
9. Return to Work Policy
  1. To provide a detailed framework of an employee's requirements following an injury, illness or other event which has affected the ability of the employee to attend the workplace and perform their duties.
  2. To ensure that employees consent to any requirement to undergo further assessment and actively participate with the employer's requirements in returning to work as soon as possible.
10. Sexual Harassment Policy
  1. To explain the necessity of an employee's participation in a workplace free from sexual harassment.
  2. To provide a clear and detailed description of behaviour and conduct which must not occur and which will not be tolerated.
  3. To detail the procedures, resources and employer representatives which are available to an employee who believes they have been subject to such harassment.
  4. To provide details of the reporting and complaint procedures which are available to employees if they believe they have been subject to any forms of harassment.
  5. To provide a description of the possible consequences to the ongoing employment of an employee following an investigation into any complaint.
11. Social Media Policy
  1. To provide a detailed description of the requirements of employees using social networking platforms (including Facebook, Twitter and LinkedIn) either during work hours (if permitted during such time) or when publishing any content regarding the business at any time.
  2. To describe the precise forms of social networking platforms which are covered.
  3. To specify the information which employees are prohibited from posting on social network websites (especially information which is confidential, discriminatory, denigrating, personal or harassing) and to detail other social media behaviour which is not acceptable.
  4. To include details of the employer's right to monitor the use of social media by its employees and the reasons for this.
  5. To provide details of the consequences which will apply if an employee is in breach of the policy requirements.
12. Workplace Harassment (Bullying) Policy
  1. To explain the necessity of employees participating in a safe workplace, free from harassment.
  2. To clearly define conduct which may constitute bullying.
  3. To provide employees with details of the procedures and other resources which are available if they believe they have subject to such harassment.
  4. To provide a description of the possible consequences to the ongoing employment of an employee following an investigation into any complaint.
13. Workplace Health and Safety Policy
  1. Ultimately, the content of this policy will depend upon the particular operational requirements of the business and the special safety procedures which need to apply.
  2. These policies are an essential component of an employer's compliance with its legislative health and safety obligations.
  3. As a minimum, all such policies should:
    1. explain the reasons for needing a safe workplace and for employees being aware of the potential risk of injury to others;
    2. set out the necessary safety procedures which employees must follow; and
    3. specify the employer's procedures in dealing with health and safety incidents.

Depending upon the nature of the business and the requirements of its employers, the nature and requirements of additional key workplace policies can be diverse. Such policies can include the following: medical assessment policy; heavy equipment and vehicle operation policy; quality assurance policy; health management policy; environmental policy; and disciplinary policy.

Essential Elements of a Workplace Policy

In order to be effective, workplace policies should include the following:

  1. a detailed description of the purpose of the policy;
  2. the categories of the employees which will be covered by the policy;
  3. the scope of the workplace activities applicable to the policy;
  4. the other relevant workplace policies, procedures or obligations that relate to the policy;
  5. a detailed treatment of the employee conduct which will be not acceptable using examples;
  6. an express provision that the policy is not legally binding on the employer;
  7. a clear description of the important terms in the policy and the procedures which will be utilised during the application and enforcement of the policy;
  8. a reference to the relevant laws and how certain conduct may contravene such laws, including the possibility of the employer being vicariously liable for an employee's actions in certain circumstances;
  9. the methods which the employer will use to investigate the conduct of the employees under the policy and the procedures which will be implemented to investigate any complaints or inappropriate behaviour;
  10. the relevant disciplinary action and other consequences which will apply if there is a breach of the policy including the possible effects on the ongoing employment of the employee (such as termination in appropriate cases);
  11. the relevant employer representatives who should be contacted if there are concerns regarding the obligations covered by the policy;
  12. any other grievance resolution procedures which may be utilised by the employer's representatives to deal with potential breaches of the policy;
  13. the program of inducting new employees to the requirements of the policies and the ongoing education of employees of such requirements including any variations which may be introduced;
  14. language which is simple, clear and precise and which avoids using industry statements or meaningless aspirational phrases (for example, employees must "keep it real");
  15. a clear description of any necessary qualifying conditions, if the policy sets out any additional employee benefits;
  16. a system of regularly reminding employees of the obligations of policies, including special policies at the relevant time (for example, before social events); and
  17. a reference to any additional procedures which may be implemented by the employer in order to monitor the compliance with policy requirements.

Specific Examples and Recent Problems

The following cases show the consequences of employers failing to have satisfactory policies in place.

In Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097, the employer was liable for the unfair dismissal of its employee who posted derogatory, offensive and discriminatory Facebook comments as the employer failed to have a social media policy in place which set out the consequences of the employee making such statements.

In Richardson v Oracle Corporation Australia Pty Ltd and Tucker [2014] FCAFC 82, the employer was liable for substantial damages to an employee that had been sexually harassed as the court found that the employer had not taken all reasonable steps to prevent the conduct. Such steps included deficiencies with its relevant policy including the policy not making it clear that: sexual harassment is against the law; legal action can be taken against anyone who engages in such conduct; and that an employer can be vicariously liable for such conduct of its employees.

In Vaughan v Anglo Coal (Drayton Management) Pty Ltd [2013] FWC 10101, an employee tested positive for a certain drug in breach of the employer's drug and alcohol policy. Although the policy did not specify that the employee could be immediately dismissed for the first failure to comply with the policy, the decision by the employer to terminate the employee's employment was upheld on the basis of the employee's dishonesty prior to the testing and during the subsequent investigation.

In Judith Wilkinson-Reed v Launtoy Pty Ltd trading as Launceston Toyota [2014] FWC 644 an employee was found to have been unfairly dismissed for making certain Facebook postings about the employer which indicated that the employee had a low opinion of the employer. The Facebook postings were found to be private in nature (compared to general Facebook "wall" postings) and were not sufficiently denigrating of the employer to a degree which provided the employer with the right of termination.

In Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, it was held that employer policies which provide for disciplinary action including dismissal as a result of positive drug testing may, in certain safety-critical workplaces (in this case the employee was a worker at the Sydney Airport), be lawful and reasonable depending upon the details and effect of the policy.

The case of Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177 held that the employer's Workplace Harassment and Discrimination Policy formed part of the employment contract as a result of the language used in the Policy and the surrounding circumstances of the education and enforcement of the Policy. Consequently, the employer was found to have breached its obligations to an employee to properly investigate a complaint.

How to Minimise Liability for Employers

It is crucial that the following requirements are satisfied in order to minimise any potential liability arising from the operation of policies:

  1. Each policy (and the relevant employment contract) should include a specific provision that the policy does not form part of the terms of the employment contract and that the employer is not bound by the policy. In recent cases, the courts have determined that the description of the procedures of an employer in certain policies has amounted to a term of the employment contract and that the employer has been liable for failing to comply with such an obligation.
  2. The policy should not specifically include required obligations of the employer. Instead, a policy should be sufficiently flexible to enable the employer to manage employment issues in accordance with the circumstances which may arise.
  3. Employers must ensure that its policies are objectively followed by all levels of management in order to avoid any claim that an employee has been unfairly treated.
  4. Employers must also ensure that all employees are regularly educated regarding the requirements of the policies and promptly informed of any changes to the policies.

Now more than ever the consequences for an employer of having insufficient or deficient policies can be severe. As a result, it is essential that the nature and content of workplace policies are regularly reviewed. We can assist employers with the drafting of legally effective policies, implementing new policies in the workplace and in performing the ongoing review of workplace documents in order to reduce potential liabilities.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.