Dismissal is a fraught process that places employers under obligations to ensure fairness or face unfair dismissal claims.  Core to demonstrating fairness is showing that the employee understood the consequences of their actions.  For this enigmatic element most businesses rely on having “business policies” but a recent case at the Commission has again underlined the need for business to ensure active understanding of policies.  Dusty policies on the shelf are inadequate, as is a tick and flick induction process.  Detailed, engaged and rigorous training in business policies, as well as safety and compliance element is the bare minimum when an employer is going to hold an employee to a conduct or performance standard, otherwise the dismissal will be rendered unfair.  All employers should review their policies, training and processes now.

Case Review

The employee, a chemical truck driver with over 20 years of service was dismissed following a series of inappropriate comments made to a colleague including that he knew “how to suck the boss”.

The business launched an investigation and identified that the employees behaviour and comments were in contravention of the business policies including the Code of Conduct, and the employee was subsequently dismissed for serious misconduct.

In bringing the unfair dismissal claim the employee alleged that he was unaware of the policies that he was dismissed for contravening.

The business argued that it had made the employee aware of the Code of Conduct at a toolbox talk.

Deputy President O’Keefe noted that while it was clear that the employee was at the toolbox meeting, that the large number of staff, the short time allocated to the discussion and the extensive nature of the Code meant that the toolbox talk was inadequate to ensure that the employees actually understood the content, noting that it was not “conducive to explaining and promoting serious workplace behavioural requirements to employees, particularly in an environment where there may have been some language barriers”.

DP O’Keefe agreed that the conduct of the employee was a valid reason for dismissal.  Despite this DP O’Keefe found that the failure of the business to effectively communicate the policies to the employee rendered the dismissal harsh and unfair and awarded the employee just over $33,000 in compensation.

Learnings for all businesses

“Any dismissal will ask the standard procedural fairness questions, and key among those is ‘did the employee know that their conduct or behaviour could or was likely to result in termination?'”, explains ACAPMAs Elisha Radwanowski.

“In demonstrating that employee did know the outcomes of their actions many businesses rely on business policies, but this case outlines again, in no uncertain terms, that having a policy is not enough.  The presence of a policy is not enough to demonstrate understanding, engagement and confirmation is needed.”

“In short, more than a ‘tick and flick’ is needed”, concluded Elisha.

More Information:  Unfair Dismissal Series

More Information:  Customised, specialised and standardised fuel retail industry training

ACAPMA has developed the Fuel Convenience Compliance (FCC) course that delivers compliance and safety training for all fuel retail workers.  From frontline workers (FCC Level 1), to onsite managers (FCC Level 2) all the way to senior managers and operators (FCC Level 3).

This specialised and standardised fuel retail industry training is delivered online and includes rigorous assessment.

Participating sites have the option of developing customised Business Policy Training and Assessment that ACAPMA can customise to the particular businesses actual policies, and deliver on the same platform as the compliance and safety information of the FCC.

For more information or assistance see the Fuel Retail Training Solutions, explore the FCC courses or reach out to the Training Team via training@acapma.com.au

Here to Help

ACAPMA members are reminded that ACAPMA has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can call on the advice and support of the ACAPMA Employment Professionals via employment@acapma.com.au .

HR Highlights are things to consider, implement and watch out for in your business.

They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.

ACAPMA Membership is affordable at only $860 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts.  Click here to learn more about ACAPMA Membership.

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