In cases of an employee policy breach, courts have supported the principle that it is not enough for an employer to simply point towards the existence of a policy in an effort to justify disciplinary action. Generally speaking, policies are fruitless unless employers can demonstrate that employees have easy access to policy documents, that regular training is provided and that policies (and changes) are effectively communicated to all employees.

In a recent case before the FWC,[1] a longstanding employee of 17 years with a positive work-record was summarily dismissed for breaching his employer’s “zero tolerance” mobile phone policy, when the employee used his phone in what his employer considered a ‘food production area’. The next day, the employee was called into a meeting where he was instantly dismissed.

The employee claimed that the employer had already decided to terminate before the meeting, because it “wanted to make an example out of him”. He said that he was aware that mobile phones were not permitted in the food production area, but he did not consider the freezer area was a food production area. Whilst the room was a ‘freezer’’, it was not connected and was only being used as storage for old boxes. Further, the employee was not aware that, if he used the phone, he could be dismissed without notice.

The company asserted that the employee had attended a “toolbox meeting” that covered prohibition of using phones in production areas just a week before the breach occurred. They used this fact to justify their decision for termination. However, no evidence was produced showing that the employee attended the meeting, as the event was undocumented.

It was found that the company had taken a lenient and somewhat inconsistent approach with regards to mobile phone usage in production areas in the past. Evidence indicated that when supervisors had previously found employees using phones in production areas they simply told them to place the phones in lockers. Further, supervisors routinely used their own phones in the loading bay and storage areas.

The FWC did not accept that the employee was aware of the contents of the company handbook. There was no evidence to suggest that he was provided with the document or any training on its contents. At the toolbox meeting, the employees were given little detail and were not provided with any written material outlining mobile phone usage, policy implementation and the consequences for breaches. In any event there was no evidence that the employee was even present at the meeting.

In finding that the employee was unfairly dismissed, the FWC also considered how the employee was denied a reasonable opportunity to respond given his employers set determination of dismissal prior to the meeting. Further, given the employee was unaware of the purpose of the meeting, he was denied the opportunity to request or obtain a support person.

Lessons for Employers

• At induction or orientation, ensure all new employees receive policy and procedure documents in hard-copy or are told where they can be accessed online.  
• Ensure that policies are regularly reviewed and communicated through regular training for all employees. Provide updated copies if any changes are made.
• If appropriate use posters and signs to remind employees about policy requirements, particularly in hazardous workplaces.
• Ensure that employees understand the consequences that follow for policy breaches. Disciplinary action must be consistently applied, and the punishment comparable to the breach.