Unfair dismissal and policies and procedures

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