Minor Breaches of Policies and Procedures and Patterns of Behaviour: Where Do the Parties Stand?

This post is contributed by Workplace Conflict Resolution’s Legal Commentator, Tiffany Healy

There are many benefits to implementing policies and procedures in the workplace. One of these benefits includes allowing an organisation to effectively control and manage its workforce. However, the workplace is no exception to the old adage, rules are made to be broken.

It is a practical reality that a percentage of a company’s workforce will make minor policy breaches – after all, we are all human. Regardless of whether the breaches are inadvertent or intentional, the employer must be equipped to manage these breaches. When a serious breach occurs, the course of action, whilst unpleasant, is often clear. However when minor breaches of policies occur, disciplining employees becomes challenging: Does an employer let it slide? Do they draw attention to the breach? Do they issue a warning? How many minor breaches constitutes too many?

Minor breaches and employer discretion

The following case grapples with many of these questions and provides a good indication of the scope of an employer’s discretion.

  • Workplace policies and procedures are being stringently enforced by the Fair Work Commission;
  • An employee’s pattern of behaviour, demonstrating consistent disregard for and refusal to comply with their employer’s policies and procedures is relevant when terminating employment contracts;
  • Social media policies can tie employees outside of working hours.

The Fair Work Commission dismissed an unfair dismissal claim in January, holding that a Linfox employee failed to obey lawful and reasonable requests made of him by his employer.

Linfox submitted to the Commission that the employee breached a number of the company’s policies, listed below:

  • Policy requiring contact with a relevant supervisor when absent from work, as he did not make contact with the appropriate person within an appropriate time frame;
  • Mobile Phone Use Policy, as he took a private mobile phone call during working hours;
  • Social Media Policy because he failed to sign an acknowledgment of understanding; and
  • Safe Working Procedures Policy because he failed to adhere to a specific procedure around loading trucks.

He was subsequently stood down on full pay until further notice.

The employee submitted that he had been strategically targeted, suggesting that it was not uncommon for other employees to also breach the policies he allegedly breached. In his counter claim, the employee also submitted that he had been bullied in the workplace.

Consistent pattern of behaviour leads to justified dismissal

The Commission ultimately held that although the individual instances concerning the employee’s conduct may not in isolation have justified his dismissal, there emerged a consistent pattern of behaviour, demonstrating disregard for and refusal to comply with the company’s policies and procedures.

Interestingly, the Commission strongly commented about how workplace social media policies can tie employees outside of working hours and it also held that the employee’s bullying counter claim was unsubstantiated, as there was not enough evidence submitted.

This case not only demonstrates the high evidentiary burden on the complainant to prove bullying allegations, but also presents us with a textbook example of how an employer may be protected by the law when they have lawfully and reasonably managed their workforce.

Malcolm Pearson v Linfox Australia Pty Ltd [2014] FWC 446

 

About the Author

Tiffany Healy is a legally trained and qualified Nationally Accredited Mediator and a member of the Law Reform Committee with Victorian Women Lawyer’s Association. Tiffany is also trained in managing high conflict personalities in legal disputes.