In the recent case of Eptesam Al Bankani v Western Sydney Migrant Resource Centre,[1] the Fair Work Commission (FWC) provided detailed guidance on workplace policies and what is required for these to be enforceable.
Ms Al Bankani was an employee of Western Sydney Migrant Resource Centre (WSMRC) who was dismissed for breaching one of her employer’s workplace policies. Just before taking annual leave, Ms Al Bankani deleted client data from her work mobile-phone. WSMRC found this conduct breached their client record-keeping policy and constituted serious misconduct, forming grounds for dismissal. Not having properly understood the terms of her employer’s workplace policy and consequently the basis for being terminated, Ms Al Bankani brought proceedings in the FWC for unfair dismissal.
The FWC found in favour of Ms Al Bankani and ordered that she employee be reinstated to her role. The facts supporting this decision included that:
- WSMRC’s complicated and legalistic policy, while comprehensible for a copyright lawyer or IT specialist, was largely impossible for an ordinary person to understand.
- Additionally, English was not Ms Al Bankani’s first language and WSMRC did not take enough steps to ensure that she could understand the policy.
- There was little evidence that WSMRC ensured its employees read their workplace policies.
Ultimately, as Ms Al Bankani had not properly understood the policy, her breach was inadvertent and could not constitute serious misconduct as a basis for her termination.
Key Takeaways
This decision highlights that an employer’s workplace policy must be accessible, reasonable, and clear. If the policy fails to meet this threshold, the FWC can find that action taken under the policy (including dismissal) is unfair, effectively rendering the policy unenforceable. The ultimate test for whether a workplace policy satisfies the FWC’s standard is whether an employee reading the policy can clearly understand which actions are permissible so that they do not inadvertently breach it.
To ensure that your workplace policies meet the FWC’s standard, we set out the below questions to ask regarding your workplace policies and steps you can take to satisfy these.
Can my employees understand the workplace policies?
- Write your workplace policies in clear, plain English.
- Do not make your workplace policies too long or complicated – get to the point.
- Consider the level of education and English-speaking ability of your employees and tailor the wording of your workplace policies to their needs.
- Provide translated versions of your policies if you have non-English speaking employees.
Have my employees read and understood the workplace policies?
- Provide copies of your policies to each employee.
- Provide workplace training or seminars on your policies to ensure employees have read or been told which actions are acceptable or not.
- Give employees the opportunity to ask questions about your workplace policies.
Implementing these measures will also assist if there is a workplace accident and SafeWork is investigating whether an employee understood directions given to them.
If you would like to update or implement clear, effective workplace policies, please do not hesitate to reach out to Daniel (daniel@morganenglish.com.au) and the Workplace team at M+E today.
[1] Eptesam Al Bankani v Western Sydney Migrant Resource Centre Ltd [2023] FWC 557.
