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Persistent breaches of workplace policies can justify dismissal

By Hannah Pelka-Caven on March 27th, 2019
  1. Termination of Employment
  2. Dismissal

 

Employers often ask if breaches of workplace policies are sufficient to justify dismissal. Whilst a substantial and wilful breach of a policy will generally constitute a valid reason for dismissal, multiple minor breaches of a policy, even if each individual breach may not be capable of being regarded as serious, can also constitute a valid reason for dismissal.

This was recently illustrated in Hanson v Rhino Rack (2019), where the Fair Work Commission (FWC) upheld the dismissal of a warehouse worker who repeatedly breached his employer’s policies.

The employee had been employed as a store person in the employer’s warehouse since April 2017.

The employer had several policies and procedures which governed conduct within the warehouse, and were applicable to the employee’s eventual dismissal:

  • Safety chain – employees were required to ensure that a safety chain was hung at the door of the warehouse to prevent unauthorised entry.
  • Scheduled breaks – the employer operated a roster with scheduled breaks so that someone was always available to meet delivery drivers. Employees were expected to adhere to the roster and only take breaks when rostered to do so.
  • No-smoking policy – the employer had a no-smoking policy which required that employees were only permitted to smoke during meal breaks in designated areas. This policy was attached to the noticeboard in the warehouse.
  • Ban on drinking/eating in the warehouse – the employer had signs stating that no food or drink were to be consumed in the warehouse.

The employee was caught repeatedly breaching the above policies and was verbally cautioned. He also received a written warning in relation to his breach of the no-smoking policy. However, despite these warnings, the employee continued to breach the applicable policies.

As a result, the employer commenced a disciplinary process, giving the employee a show cause letter stating that the employee was intentionally and persistently breaching their policies and procedures.

The employee responded to the allegations stating, “…for the most part I can’t say I’m innocent.” In response, the employer terminated his employment.

The employee then commenced unfair dismissal proceedings. The employee argued that he had not breached the employer’s policies and procedures, but that if he had it was either not intentional or that the procedures were not important and he was only required to “try” to follow them.

The FWC Deputy President found that the employer’s policies and procedures, and the directions to follow them, were reasonable and lawful and the employee had repeatedly breached those policies and directions, even given he had been informally and formally warned not to do so.

The Deputy President stated

“While [the employee’s] conduct may not in isolation have justified his dismissal … I am satisfied that [the employee’s] conduct involved, in aggregate, a consistent pattern of behaviour that demonstrated a repeated disregard for and refusal to comply with Rhino Rack’s lawful and reasonable policies, procedures and directions. I am satisfied in those circumstances [the employee’s] conduct constituted a valid reason for his dismissal.”

He also examined the disciplinary process followed by the employer and found that it was procedurally fair and that the dismissal “was proportional to the persistent nature of his conduct and was not in all the circumstances harsh, unjust or unreasonable”.

Key lessons:

  • The dismissal process the employer followed was fair, specifically:
    • the employee was notified of the reasons for his dismissal in writing during the disciplinary process;
    • the employee was provided with an opportunity to respond to the allegations against him; and
    • the employee was not unreasonably refused a support person throughout the disciplinary process.
  • The show cause letter explained in detail the policy and procedures that the employee’s conduct had breached, and provided particulars of when and where the breach was alleged to have occurred and the rationale for the applicable policy.
  • The employee disputed whether some of the verbal warnings had actually been given. It is often worth making a note that an informal warning has been given on an employment record.
  • The employee’s contract contained an express warning that a failure to comply with policies and procedures may result in the termination of employment.
  • One of the key factors in this case was the large number of informal warnings, and the formal warning given to the employee – this was significant in demonstrating that the dismissal was fair.

Do you need to discipline an employee?

Whatever issue you have to deal with, make sure the actions you take are within the law by reading up on the following chapters in the Employment Law Practical Handbook:

W6 Workplace Policies and Procedures

H2 Performance Management

H3 Misconduct

D2 Dismissal

U1 Unfair Dismissal

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