In a recent unfair dismissal case, the Fair Work Commission (the “FWC”) found that despite an employee bullying a colleague in breach of the employer’s workplace policies, the dismissal was unjust and harsh because the employee was largely unaware of the policies.

The background

Leading up to the dismissal, the employee had engaged in behaviour that “disrespected”, “humiliated” and “emotionally abused” a colleague by repeatedly making crude remarks and gestures about him. After continuing for a while, the colleague asked the employee to stop the behaviour or he would raise a complaint of harassment. Over the next couple of weeks, the employee “doubled down” and began making comments to others about not being able to joke around, for fear of being reported to management by the colleague. A number of these comments were made in front of the colleague which eventually led him to challenge the employee. The employee, primarily because he was being called out, responded aggressively in a resulting altercation.

This behaviour was reported to the employer who conducted an investigation, concluding that the employee’s behaviour was in breach of several of its workplace policies, and subsequently terminated his employment.

The issue taken by the FWC

The employee made an application to the FWC alleging that the termination of his employment was unfair.

While the FWC found that there was a valid reason for the termination of the employee’s employment, the FWC took issue with the lack of understanding the employee had of the workplace policies.

While the employer provided evidence that the employee had attended a meeting where the Code of Conduct was discussed, the FWC considered that it was a “tick and flick” exercise since it:

• was a relatively short meeting;
• had a significant number of attendees;
• was in a context with language barriers (with the employee more fluent in Malay);
• was not personally attended by the People and Culture Manger (and so she could not personally guarantee the exercise’s legitimacy); and
• seemed to merely demonstrate the employee’s attendance.

The FWC noted that a “linguistically appropriate interactive training course that dealt with not just the “what” but also the “why”” behind workplace behaviour may have changed the Applicant’s behaviour”. The FWC considered that the lack of exposure to, and understanding of, the policies was a contributory factor which added “an element of injustice” to the dismissal – tipping it over into unfair dismissal.

Takeaways for employers

This is an interesting case for employers since it highlights the importance of an effective roll out of workplace policies. Employers should be aware that adequate workplace policy roll outs are those catered to the relevant, specific needs of employees and that blanket exercises are both ineffective and looked upon unfavourably by the FWC.

Employers now operate in a context where there is a high bar when it comes to what is expected in relation to the education and training of employees. Tick and flick, unintegrated policies with little or no accompanying training or education are not going to protect an employer in defending cases, avoiding liability or discharging positive obligations under work, health and safety or sexual harassment legislation.