Know your policies and avoid being unreasonable

Workplace policies are often treated as administrative documents that sit on a shelf until a problem arises. However, when a dispute reaches the Fair Work Commission (the Commission), a court, or an investigative body, those policies can become critical evidence.

Employers frequently rely on policies to justify disciplinary action, performance management decision, workplace investigations, and even dismissals. The difficulty arises when decision-makers either do not understand the relevant policy or apply it in a manner that is unreasonable.

Policies Matter, But They Are Not Enough

Having a well-drafted policy is only the first step. Employers must ensure that:

key policies are accessible to employees;
employees are trained on key policies;
managers understand their obligations; under the key policies
policies are applied consistently; and
decisions made under a policy are reasonable in the circumstances.

A failure in any of these areas can significantly undermine an employer’s position if challenged.

Consistency Is Critical

A Fair Work Commission decision regarding Jennifer Watts’ application for an order to stop bullying ([2018] FWC 1455) reinforces the importance of employers knowing and applying company policies in the context of dealing wtih complaints of bullying that emerge during an investigations into an employee’s behaviour. The decision serves as a useful reminder that HR professionals and managers need to understand and apply applicable company policies when dealing with complaints of bullying that emerge during an investigation into an employee’s performance or behaviour.

The facts

Ms Watts was employed by Ramsay Health Care (Ramsay) as a catering assistant at Glengarry Private Hospital. Ms Watts applied to the Commission under section 789FC of the Fair Work Act 2009 (Cth) (FW Act) for an order against three of her co-workers to stop bullying her.

The bullying behaviour Ms Watts complained of included:

Her co-workers were laughing at a "joke" made by the Acting Boss that an orange pill found in a drawer belonged to Ms Watts
A co-worker told Ms Watts' supervisor on a number of occasions that Ms Watts smelt of alcohol and was intoxicated, when she was not
Two co-workers asked another employee, in a derogatory manner, what it was like to work with Ms Watts on the night shift
Ms Watts' supervisor directed Ms Watts to remove her necklace in front of her co-workers, and singled her out in doing so.

Ms Watts referred to this behaviour in a written response she provided to Ramsay in answer to allegations that had been made against her regarding her performance and behaviour. Ms Watts also asked Ramsay to speak to her co-workers and her previous manager (who had left Ramsay), to obtain an ‘independent’ account of the alleged bullying she referred to, and had been subjected to.

Despite Ms Watts’ requests, Ramsay didn’t telephone the ex-manager or speak to other staff, and contrary to policy, required Ms Watts to provide specific details before they could investigate her concerns further. Ms Watts did not provide any further information, and so Ramsay determined there were no allegations to investigate.

Ramsay’s Discrimination, Bullying and Harassment Policy provided that managers had particular responsibilities, including “Treating all complaints seriously, investigating and resolving issues in so far as they are able”. The policy also provided that an employee could refer a grievance to their manager who could assist in “facilitating” a discussion and/or resolution. If no effective resolution was achieved the employee could lodge a formal complaint “preferably in writing”.

As Ramsay failed to investigate Ms Watt’s concerns, Ms Watts sought the Commission’s assistance to stop the bullying, particularly as her health had been affected by the conduct engaged in by her work colleagues. In that regard, she told the Commission that she cried every day, and this happened whenever she thought about work. Ms Watts also said that she had developed a stress disease called neuralgia on her arms, and had stomach complaints.

For the purposes of determining Ms Watts’ application, the Commission had to consider whether Ms Watts was the subject of repeated unreasonable behaviour by an individual or a group of individuals whilst at work, and whether the behaviour created a risk to health and safety. The Commission also had to consider whether any of the behaviour complained of was reasonable management action carried out in a reasonable manner.

The decision

Based on the material before it, the FWC found that:

Ms Watts was bullied at work, and there was a risk that she would continue to be bullied at work
the HR Advisor and the manager failed to investigate Ms Watts' complaints, and their failure to investigate was unreasonable
Ms Watts' health had been negatively affected by her experiences at work
Some of the instances of bullying could be viewed in isolation as relatively low-level bullyingit was still appropriate to make an order.
It was appropriate to make an order to prevent Ms Watts being bullied in the future.

Lessons from the decision

Managing and addressing underperformance can be tedious and time consuming. However, if an employee alleges that their alleged poor performance is due to bullying behaviour engaged in by others in the workplace, then do the following to avoid being unreasonable, and losing control of the situation:

Listen to the employee, and understand their concerns and reasons for their non-performance.
If the employee alleges their performance has been affected by bullying behaviour, investigate those allegations and concerns, ensuring that you comply with any applicable company policies.
Once you have determined whether the allegations and concerns can be substantiated or not, make a decision about what if any impact, the allegations and concerns have on the management of the employee’s alleged underperformance.
Maintain effective communication with the employee throughout the process to ensure that the employee understands what steps are being taken, and the decisions being made, to minimise the risk of the employee seeking external assistance to achieve a resolution to their concerns (eg by making an application to the Commission).

Practical Steps for Employers

To reduce risk, employers should regularly review their workplace policies and practices and ask:

Are our policies current and legally compliant?
Have employees been informed of and trained on them?
Do managers understand how to apply them?
Are policies being enforced consistently across the organisation?
Does our anti-bullying policy specify what employees should provide in support of a complaint? (for example: dates, who was present, and was was said and done).
Would our decision-making be viewed as reasonable by an external tribunal or court?

If the answer to any of these questions is uncertain, it may be time for a policy review.

Managers Need Training

Even the best policy framework can fail if managers do not understand how to apply it. Managers are often required to make decisions under pressure and may believe that strict enforcement automatically equates to compliance. In reality, a rigid approach can create legal risk if it ignores context, procedural fairness, or common sense.

Regular training can help managers understand:

the purpose of workplace policies;
when discretion should be exercised;
procedural fairness requirements;
documentation obligations; and
the importance of consistent decision-making.

Final Thoughts

Workplace policies can be valuable risk-management tools, but they are not a substitute for sound judgement. Employers who understand their policies, apply them consistently, and exercise reasonable decision-making are in a far stronger position when workplace issues arise.

HintonFlynn Legal advises employers on workplace policies, investigations, disciplinary processes and managing employment risks before they become disputes.

Need advice on reviewing your workplace policies or managing a difficult employee issue? Contact HintonFlynn Legal for practical, strategic workplace relations advice.

Please note: The content of this article is general in nature and is not intended to and should not be relied on as a substitute for legal advice which is specific to your circumstances.