Do you really need workplace policies?

Workplace policies are not always considered necessary in workplaces, however, we consider them to be an imperative to the employment relationship. Workplace policies (that are legible and correctly enforced) offer additional protection to the employer and can assist in fostering a harmonious workplace culture. In a nutshell, workplace policies assist in identifying acceptable and unacceptable standards of conduct, and what that means for both you and your employees.

As workplace policies reflect the appropriate standards of conduct to be followed within a company, employers can often rely on these policies in the event of a dispute or when implementing disciplinary action. However, it is important that an employer who seeks to rely on their policies in these instances, that they have successfully enforced the policy and that all staff have been appropriately trained on the policy, including regular refreshes.

Although workplace policies are technically not binding contractual documents, they are still binding on employees. In the event that an employee may make a claim against an employer in court or the Fair Work Commission (the Commission), an employer may use workplace policies to defend themselves against legal claims. However, if workplace policies remain dormant and are not utilized and/or enforced they are unlikely to mitigate the risk of a successful legal claim against the employer.

Case study
As indicated in the following case, Symes v Linfox Armaguard 1, an employee was dismissed from a company for swearing at his supervisor. The Commission uncovered that while swearing at the supervisor was misconduct, it was unjust to dismiss the employee for this as the company had previously not enforced the ‘no swearing’ policy in the workplace. This case reflects the importance of not only having a workplace policy, but also the need to enforce and follow it in practice.

Relationship between law and policies
Further to this, employers must ensure their workplace policies are consistent with relevant legislation such as the Fair Work Act 2009 (Cth) and relevant Awards.

We often receive questions around whether certain terms and conditions of employment should be within the employment contract or a workplace policy. This will be dependent on the nature of the condition, and something for an employer to consider is that an employment contract is a binding agreement between the employer and employee, meaning an amendment must be agreeable to both the employer and employee. Therefore, if you wish to implement a workplace policy which may change in the future, it’s recommended to keep the specifics out of the employment contract and rather implement a policy instead.

In saying this, we highly recommend your employment contracts contain a clause that ensures employees are aware that workplace policies form part of their terms and conditions of employment, and they are required to abide by them at all times.