By Rod Commins, Patterson Houen & Commins, Lawyers, Sydney
Well written policies help employers manage staff more effectively by clearly defining acceptable and unacceptable behaviour in the workplace, and set out the implications of not complying with those policies. It’s equally important to review your Workplace Policies on a regular basis and update where necessary.
Consider these scenarios:
You are the CEO and a major shareholder of the Biscuit & Widget Company.
You are in your office contemplating the benefits to the bottom line of the business of a new wafer for your biscuit widgets, when your faithful factotum Smithers enters and places on your desk a handsome volume of workplace policies prepared by Ace (One Size Fits All) Workplace Policies, together with a USB stick which you are told contains an electronic version of the policies.
You admire the glossiness of the report and wonder at the technology which enables so much to be contained on the USB stick. You tell Smithers you will look at the report later and promptly put it in your bottom drawer and forget about it.
Many months later, you learn that one of your employees, Tom Troglodyte, has racially abused and discriminated against Fatima O’Reilly, one of your black transgender employees, who has obtained orders from the Federal Circuit Court under the Fair Work Act that your company is vicariously liable for the actions of Tom Troglodyte and has to pay a penalty of $51,000.00 plus a substantial sum in compensation.
Your employees become demotivated, Smithers resigns, your bottom line is shredded and there is a man in a grey suit who looks suspiciously like a liquidator hovering outside your office door.
You say: “Damn.”
Smithers arrives with a well-documented set of workplace policies prepared after consultation with your MSI advisers or a specialist recommended by them which is customised to the needs and culture of your business.
You carefully review the report and set up meetings with your executives and managers to ensure that:
- your employees are made aware of the conduct required to comply with the policies and, in particular, conduct which is prohibited or unlawful;
- the consequences of breaching policies are made clear to employees;
- employees are made aware of the circumstances in which your company as employer can be vicariously liable for their unlawful conduct;
- all workplace policies are regularly reviewed so they are up to date and compliant with all relevant laws and regulations;
- the policies are well publicised and that employees have ready access to them, for example, via notice boards, induction books, intranet and the like;
- new employees are directed to the policies and required to acknowledge their awareness and understanding of them;
- regular training is provided in relation to the policies;
- any policy breaches and complaints are treated seriously and are investigated and dealt with in a timely way in accordance with the complaint procedures established by the policies;
- you and your managers regularly monitor and update the policies and their application to maintain their relevance and observance.
Your proactive approach is welcomed by your employees. Morale and productivity improves substantially. Smithers continues to admire you and the bottom line looks rosy.
Your company, having taken reasonable steps to ensure proscribed behaviour does not take place in workplace environments, is in a strong position to avoid or defeat vicarious liability claims.
You say: “Hooray!”