2 min read

Dismissal for policy breaches may not be fair if the policy is incomprehensible

In Eptesam Al Bankani v Western Sydney Migrant Resource Centre Ltd (2023), the Fair Work Commission (FWC) emphasised the importance of clear and understandable workplace policies, especially in organisations with employees who may not have English as their first language or who may not be familiar with complex legal language.

Policies that are too long, too complicated and too legalistic can lead to confusion, misunderstandings, and misinterpretations. This can lead to employees inadvertently breaching policies that they do not understand.

Policies should be written in plain language, tailored to the audience, and specific enough to be understood easily. Employers should also provide training and resources to help employees understand and comply with their policies. By doing so, employers can help prevent confusion, misunderstandings and breaches of policies, and ultimately avoid costly legal proceedings.

In this case, the FWC ordered an employer to reinstate an employee who was dismissed for breaching the organisation's client record-keeping policy.

Although the employer had a valid reason for the dismissal, the FWC found the policy to be overly complicated and legalistic, and not effectively communicated to employees. The employee was a manager who worked for not-for-profit organisation that provides services to the migrant community in Western Sydney.

The employee was provided with an on-call mobile phone for receiving calls after 5pm, which she gave to a colleague over Christmas in 2021 when she took leave. Before handing over the phone, the employee deleted its contents, including alleged client records. This conduct breached the employer’s policy manual, which stated that employees were prohibited from deleting client records for at least 7 years.

The FWC found there was a valid reason for dismissal. However, the conduct was not serious enough to warrant summary dismissal. The FWC found the policy manual was excessively long, complex and legalistic, and did not clearly communicate the organisation's requirements to the employee.

The FWC noted the relevant clause might make sense to copyright lawyers and IT specialists, but is unlikely to be comprehensible to others. The FWC was especially concerned about the employee, who required a translator during the proceedings, not having English as her first language. The FWC doubted the employee understood and remembered all the terms in the policy manual.

The FWC also found there was little evidence of the employer ensuring its employees read and actually understood the policy manual. The policy procedures regarding phones and IT were found to be “haphazard,” as their procedures for handling data on mobile phones and IT were disorganised and they did not differentiate between types of data or take steps to preserve or protect it.

TIP: Subscribers to the Employment Law Practical Handbook can find out how to put together a workplace policy – and avoid the pitfalls – in the chapter Workplace policies.

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