Will your ‘zero-tolerance policy’ withstand the scrutiny of the Fair Work Commission?

A behaviour that is perfectly acceptable in one workplace may be cause for summary dismissal in another. Take the use of a mobile phone – it’s expected of an office worker, but it is typically forbidden in the context of a food production line.

The rulebook was crystal clear in the case of the Fresh Cheese Co Pty Ltd, who summarily dismissed a long-standing employee for breaching its ‘zero-tolerance’ mobile phone policy. However, the Fair Work Commission held last week that the dismissal was unfair because the business had not adequately informed the aggrieved worker of the rules.

Fresh Cheese Co had failed to evince that the employee had been provided with the employee handbook. Nor could the company verify whether or not the employee had attended ‘toolbox’ meetings in which the rules were discussed. Furthermore, the company had failed to consistently apply the rules in the past. Commissioner Katrina Harper-Greenwell observed that the meetings were ‘tardily organized’ and that there was ‘insufficient detail provided to employees’.

‘A company cannot simply produce policies and procedures and expect to rely on them to defend a claim if there is no evidence to support that its employees have been made aware of those documents, trained in the content of the documents, and provided with access to those documents’, the commissioner added.

Lesson for employers

A zero-tolerance policy may appear ironclad, but the Fair Work Commission will tear it apart unless the policy has been adequately operationalised. The onus is on the employer to show that the rules were clearly documented, distributed, explained and consistently applied. To review your workplace policies, contact the employment lawyers at Rankin & Co.

Rachel Derrico, Senior Associate, Rankin & Co.