Employers often provide employees with handbooks, policies and procedures which regulate workplace matters such as:
- Work health and safety.
- Anti-discrimination and equal employment opportunity.
- Occupational Health and Safety.
- Use of company property.
- Use of social media.
- Drug and alcohol use.
- Employee performance management and discipline.
We understand that writing and reviewing policies and procedures takes time away from an employers' core business and so this task is always at the bottom of the to do list. If this is occurring in your business you should be warned that neglecting your policies and procedures can come at a considerable cost to your organisation.
Any organisation that employs staff can never be completely immune from the risk of a claim being made against them by an employee or former employee. In our experience however, policies and procedures will aid employers in managing workplace issues and are useful in defending claims such as general protections claims (e.g. adverse action) and unfair dismissal claims provided they are complied with.
All organisations who employ staff should have well documented policies and procedures, at the very least, for the following reasons:
- Policies and procedures can fulfil employers' obligations and responsibilities under certain legislation such as work health and safety and discrimination legislation.
- Policies and procedures provide employees with a clear understanding of what is expected of them.
- Policies and procedures provide a fair, predictable and consistent approach to managing the workplace and workplace issues. Avoiding the need make it up as you go which in almost all cases will result in a problem.
- Being able to refer to a set of policies and procedures can save time when inducting new employees and for training purposes.
- Policies and procedures and a written employment agreement are valuable reference tools in managing workplace issues arising from employee misconduct or inappropriate behaviour.
Adverse Action and Policies and Procedures
The general protections provisions in the Fair Work Act 2009 (Cth) ("the Act") provide broad protections to employees and others in relation to adverse action taken by employers if that action is taken for a prohibited reason.
Adverse action broadly includes doing, threatening or organising any of the following:
- An employer against an employee – dismissing them, injuring them in their employment, altering their position to their prejudice or discriminating between them and other employees.
- Adverse action may also be taken outside the employment relationship by – prospective employers against prospective employees, principals against independent contractors and industrial associations against others.
Taking adverse action is not, on its own unlawful, however, it is unlawful to take adverse action because of a prescribed reason, such discrimination, industrial activities or asserting a workplace right.
Once an employee has established they have suffered adverse action and have alleged the action is within the scope of a prescribed ground, it is presumed that the employer's action was taken for that reason unless the employer proves otherwise.
The matter of Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited  FCA 267 demonstrates the important role policies can play in in the defence of a claim by an employee.
Facts of the matter
In this matter, the CFMEU, on behalf of Mr Dever, claimed that the employer, Bengalla, had taken adverse action against Mr Dever by issuing him with a warning letter "because of" Mr Dever's union membership, office or activities as a member of the Board of Management, Mining & Energy Division, Northern District of the CFMEU.
On three occasions, Mr Dever applied for unpaid leave to attend union meetings.
Bengalla had a Leave Policy which included the circumstances under which unpaid leave would be approved. It also provided that any absence not approved would be considered an unauthorised absence and that certain breaches of the policy would be dealt with under their performance management policy.
Upon receiving Mr Dever's first application for unpaid leave, Mr Blason, Mr Dever's Superintendent, reviewed the Leave Policy and interpreted it to mean that unpaid leave was only available if all other paid leave was exhausted. This interpretation of the Leave Policy was confirmed by Bengalla's Service Manager, Mr Lawler.
Mr Dever was advised by email that his application for unpaid leave had not been approved as it was outside the policy, and at the time of the requested leave he would have accrued 327.73 hours of annual leave.
Mr Dever then sent an email to his supervisors confirming his appointment with the CFMEU and resubmitted an application for unpaid leave. Mr Dever was advised again by Bengalla that they could not support the request for unpaid leave, but that it would support an application for annual leave in accordance with the Leave Policy.
The CFMEU then contacted Bengalla about the request for unpaid leave. Bengalla confirmed that the decision to refuse Mr Dever's application for unpaid leave was not associated with the reason for the leave request, being Mr Dever's involvement in a union activity. The letter noted that if Mr Dever failed to attend work when rostered to do so, his absence will be dealt with in accordance with the usual policies and procedures.
On 29 August 2012, Mr Dever did not attend work as rostered.
Shortly thereafter, a meeting was arranged with Mr Dever and his representative to discuss his absence.
Following the meeting and after consideration of the matters discussed, Bengalla issued Mr Dever with a written warning for his unauthorised absence.
The issue in the case was whether the warning letter was issued because of Mr Dever's union membership or involvement in union activities.
The CFMEU tried to establish its case by showing that Bengalla's managers knew that Mr Dever was going to be absent to engage in what was clearly a legitimate union activity.
Justice Katzmann found that Mr Dever knowingly failed to attend work when rostered to do so and took leave without adequate supporting documentation, in breach of the policy. Her Honour accepted Bengalla's case that Mr Dever's union membership status or activities had nothing to do with the decision to issue the written warning.
Her Honour dismissed the application.
This decision demonstrates how essential it is for employers in defending allegations of adverse action to ensure:
- it has clear up to date policies in place;
- that all employees are made aware of the existence of policies:
- that managers/supervisors are trained on the interpretation and application of policies; and
- that policies are enforced consistently and without discrimination.
Ensuring up to date policies and procedures are in place and enforced will aid employers in any defence to a claim for adverse action.
The authors of this article are experts in drafting workplace policies and procedures and can provide guidance and advice on appropriate policies and procedures for your workplace.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.