A recent ruling by the Fair Work Commission (FWC) emphasised the importance of clear and understandable workplace policies. Policies that are too long, too complicated, and too legalistic can lead to confusion, misunderstandings, and misinterpretations. As a result, employees can unknowingly be in breach of a policy they do not understand.

Case study

In Eptesam Al Bankani v Western Sydney Migrant Resource Centre Ltd (2023), the FWC ordered the employer to reinstate the employee who had been dismissed for breaching the record-keeping policy. The employee was a manager who worked for a not-for-profit business that provides services to the migrant community. Part of the employee’s role was to receive calls after business hours, and so they were supplied an on-call mobile phone for this purpose.

Over the 2021 Christmas and New Year period, the employee took leave and gave the phone to a colleague to use. Prior to handing the phone over, the employee deleted the phones contents, including client records, in breach of the businesses record-keeping policy which states that client records must be kept for at least 7 years.

The FWC found that although the reason for dismissal was valid, the policy breached was excessively long, complex, and legalistic. Additionally, the employer had failed to effectively communicate the businesses requirements to workers, with little evidence showing that the employer had taken sufficient steps to ensure employees had read and understood the policy.

Furthermore, the FWC noted that the procedures in relation to phones and IT were disorganised and that it was unreasonable to expect the average employee to be able to understand the relevant clause.

Important considerations when developing policies

Policies and procedures that are simple and fit for purpose are essential. To ensure compliance, HR documentation should be written in plain language, tailored to the audience, and specific enough to be understood easily, especially for businesses with employees who speak English as a second language or those who are not familiar with complex legal jargon.

Employers should provide suitable training to workers to ensure that the information has not only been acknowledged, but also understood and accepted through sign off. Policies are only as effective as the tools and resources that support employees to follow them, and the following guidelines are a good starting point to ensure compliance.

Implement reasonable policies – Employees can only comply with policies and procedures that are able to be reasonably followed. To avoid miscommunication and unclear expectations, employers should consult with employees during the creation of policies to better understand the nuances of the businesses culture, how processes work, and what barriers exist that could get in the way of compliance. Not only is this insight invaluable, but providing workers with the opportunity to have genuine input throughout the process provides a sense of personal ownership and supports buy-in.

Make policies easily accessible to all employees – Accessibility is a critical aspect of compliance with policies and procedures. In order to be able to follow a rule, employees need to know what it is and how they are required to comply with it. Digital documents are most effective, and a user-friendly and well-organised cloud-based document library is a practical tool which makes policies easily accessible for any employee with internet access, regardless of location.

Communicate new policies and updates – Employers need to be completely transparent when it comes to communicating new and updated policies and procedures with workers. Whether employees are notified by email, in meetings, or with signs around the workplace, what matters is that everyone is aware of the change. In addition, providing employees with the opportunity to give anonymous feedback could be helpful in highlighting any potential missteps that may lead to issues in the future.

Require acknowledgement – Sign off on new and updated policies is important, as it not only ensures everyone has seen the policy, but also helps to reduce the legal risk a business can face as a result of misconduct. If an employee breaches a policy, acknowledgement provides evidence that the employee was aware of the policy and the consequences for breaching it.

For a policy to be relied upon to support significant disciplinary action, employers must be confident that the employee understands the policy, that the policy is consistently applied and that systems support performance in accordance with the policy. HR documents that ‘one size fits all’ are will provide little support to employers who are trying to drive performance, manage risk and hold people to account.

If you need assistance developing and implementing tailored policies and procedures in your workplace, get in touch with our team – we can help.

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