This passage from an unfair dismissal case deals with the relevance of an employer’s policies and procedures in that context.
“Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant. I have considered the evidence and submissions that relate to
this heading. It is necessary to consider the broader context in which the acts of the Applicants
occurred to form an overall view as to whether the terminations were harsh, unjust or
unreasonable. I am of the view that there are a number of factors here that need to be taken into
account.
[87] Firstly, in cases of misconduct the degree of seriousness of the misconduct may be taken
into account as a relevant matter under s.387(h) when considering whether “dismissal was a
proportionate response to the conduct in question.”106 Here, the Applicants were dismissed
summarily for what the Respondent contends was misconduct. The Applicants contend that
even if it were assumed that there was a policy in place that prevented the transfer of sales, the
sanction of termination was a disproportionate response to the conduct in question.
[88] In Australia Post107 the Full Bench majority made a number of observations relating to
terminations based on breaches of company policy.
[2023] FWC 2032
“[61] The formulation, implementation, dissemination and enforcement of polices are a
matter within the prerogative of management. The almost infinite variety of businesses
and their circumstances necessarily leads to great variability in employer approaches
to those matters. In particular, there is great variability in the approach of employers
to:
- The form and content of policies. (Employer policies come in all shapes and
sizes. Some employers have voluminous policies filled with detailed prescription.
Others have polices expressed in broad terms.)
- They way in which employees are educated as to the content of polices.
- The way in which polices are enforced (some employers enforce their policies
rigorously, other employers allow a situation to develop where particular
breaches of policy go unanswered) and in disciplinary procedures and the
approach to disciplinary decision making.
[62] Breaches of policy can often cover a spectrum from the trivial, minor or technical
to the very serious.
[63] All or virtually all medium to large employers have a range of policies that
employees are required to observe…… Most employers train employees in the
employer’s policies. Many if not most employers require employees to familiarise
themselves with the employer’s policies. Many if not most employers have logon notices
reminding employees using the employer’s IT system that they are bound by the
employer’s policies. Common experience dictates that such policy training often does
not result in enduring employee familiarity with the policies and that logon reminders
become, as it were, part of the wallpaper.
[89] In National Union of Workers and AB Oxford Cold Storage Co. Pty. Ltd,
108 Senior
Deputy President Williams said:
Strict and inflexible adherence to and application of policy can and, often does, lead to
unfairness. In my view, in determining to terminate Mr Millard’s employment, the
employer gave undue weight to the application of its policy and insufficient and
inadequate consideration to circumstances which might have justified the application
of an alternative penalty. In this respect, I particularly have in mind Mr Millard’s record
as an employee, the nature of the altercation and the lack of any injury suffered by either
participant or onlooker and the likelihood that Mr Millard would act in the same way
again. To have applied a lesser penalty than termination of employment would not have
jeopardised the integrity of the Code of Conduct.”
Comer and others v Rentokil Initial Pty Ltd [2023] FWC 2032 delivered 15 August 2023 per Roberts DP