Policies and procedures are essential
for all successful businesses and are
written with key business objectives
in mind, be they for; compliance,
personal or transactional
transparency, company best practice,
business process standardisation,
cost management, customer service,
workplace health and safety, or staff
training.
Policies and procedures form part of
your conditions of employment and
must be complied with otherwise
your employer may have the
right to commence disciplinary
procedures which may even lead to
the termination of your employment.
As an Industrial Representative
Organisation, the protection of your
employment is what we seek.
That said, recently the Fair Work
Commission (FWC) has heard
several cases where employers do
not have clear and concise policies
and procedures. They are deemed
unclear, ambiguous or nonsensical.
The FWC has also heard cases where
employees have failed to follow
their employer’s policies, procedures
and direct requests in full or in
part resulting in termination of
employment.
Although the below examples are
not specifically from the Club
Industry, it is essential that the case
and FWC Decisions are understood
as the ruling can be applied across
all industries and sectors. We
often have to deal with individual
member’s matters which pertain to
their club’s policies and procedures,
for example, cash handling
procedures.
Termination for failing to follow
the employer’s policies and
procedures
Failure to disclose secondary
employment:
employer’s policy of having to
disclose a second job.
In short, the employee was engaged
in work outside of his primary
employment which was a breach
of his employment contract and
the Company’s Code of Conduct.
The employer also argued that the
second job was interfering with the
employee’s fitness for work and
ability to perform his primary duties.
The employer encouraged the
employee to normalise his Uber work
by completing a formal request to
hold a second job. The employer also
wrote to the employer reminding him
of his health and safety concerns
and confirming its request that he
obtain permission to work for Uber,
along with the hours he expected to
work.
The FWC ruled that the termination
was justified as the employer
requested on several occasions
for the employee to state his case
surrounding his second job, however,
the employee refused and failed to
meet these reasonable requests
and ignored opportunities to resolve
the matter. As a result it was
deemed that the employee was the
“Architect of his own demise” and
continued down a path of denying
the truth and deliberately misleading
his employer. The Commissioner
stated the employee showed a lack
of transparency and cooperation
regarding his employment with Uber,
that he deliberately misled and lied
to his employer, and that dismissal
was justified.
Key learnings:
• Know the policies and
procedures of your club and
follow them
• Adhere to reasonable
requests of your employer
• Do not lie or mislead - be
transparent and honest with
your employer
Mervyn Jacob v West Australian
Newspapers Limited T/A The West
Australian [2016] FWC 5382 (8
August 2016)
Breach of zero tolerance drug
policy:
In this particular case, it came to
light that an employee of West
Australian Newspapers was
moonlighting as an Uber driver,
which was a direct beach of the
Mr Corwynn Owens v Bynoe
Community Advancement
Cooperative Society Limited T/A
Bynoe CACS Ltd [2016] FWC 5274 (9
August 2016)
IQ 22
The sacking of a remote Aboriginal
settlement employee who tested
positive to marijuana was deemed
fair despite the employer only
recently adopting a zero tolerance
policy and failure to put these
changes in writing.
Although the policy produced a
‘harsh outcome’ and that dismissal
was effected ‘with little regard
to procedural richness’, it was
reasonable for the employer to set
a very high standard of condu ct
for its employees and that strict
compliance was required in the
‘acutely sensitive environment’ as
the employee was directly involved
with families who experience drug
and alcohol dependency issues.
Following a negative result of a
random drug and alcohol test, the
employee was subjected to another
random drug and alcohol test
after the employer learnt that its
employees take masking agents to
manipulate results. The second test
returned a positive result.
The employee was dismissed for
breaching the company’s Behaviour
and Code of Conduct Policy, which
stated that “an employee who tested
positive for illegal drugs would be
summarily dismissed”.
The Commissioner accepted that
the new policy was communicated
to staff in a team meeting was
sufficient to warrant the change
being in place. Even though the
meeting attendance sheet did not
confirm attendance at that meeting,
the daily sign-in book was enough to
confirm the employees attendance.
The FWC found that on the balance
of probabilities, the employee did
know of the changes on the drug
and alcohol policy. He also went
on to say that rumours within
the workplace relating to another
employee failing a drug test and
being terminated caused some
controversy in the local community
and added to the probability of
this employee having a deeper
understanding of the new policy than
he originally stated.