So, can you fire an employee for breaching a workplace policy? The short answer is—it depends.
Businesses often have workplace policies in place that set out the standard of behaviour that is expected of their employees.
Some examples of important workplace policies include:
- Codes of conduct;
- Health and safety policies;
- Bullying and harassment policies;
- Internet and email policies; and
- Drug and alcohol policies.
If a former employee makes an application for unfair dismissal, the Fair Work Commission will consider all of the circumstances of the dismissal and will determine the lawfulness of the termination on a case-by-case basis.
In the 2016 case of Peter Carroll v Karingal Inc (2016) FWC 3709, the employer was found to have acted lawfully by terminating an employee for breaching a workplace policy.
The facts of the case
Mr Carroll was employed by Karingal Inc. as an audit and risk manager, supervising several other employees, two of whom made complaints against him.
The allegations were that Mr Carroll was aggressive and controlling, that he micromanaged the workplace and that he belittled other employees, particularly with respect to the complainants’ English skills.
Upon receiving the complaints, Karingal requested an independent enquiry and arranged for Mr Carroll to work from home while the investigations took place.
The report found that Mr Carroll’s behaviour towards the complainants constituted a breach of Karingal’s:
- Code of Conduct;
- Work, Health and Safety Policy; and
- Bullying and Harassment Policy.
Karingal terminated Mr Carroll’s employment by letter citing Mr Carroll’s breaches of Karingal’s workplace policies as the reason for the termination of his employment.
Mr Carroll then made an application to the Fair Work Commission for unfair dismissal.
Unfair dismissal claim
The employer and employee relationship is largely governed by the Fair Work Act 2009 (Cth) (Fair Work Act) which sets out minimum standards of employment and, among other things, provides protection to employees against unfair dismissal.
Section 385 of the Fair Work Act provides that a dismissal is unfair if, relevantly, the dismissal was harsh, unjust or unreasonable.
The Fair Work Commission considered whether Mr Carroll’s dismissal was harsh, unjust or unreasonable in all of the circumstances of the case.
Karingal submitted that the reason for Mr Carroll’s termination was that:
- Mr Carroll had engaged in “serious and sustained bullying of staff under his management and supervision, which adversely affected their health, safety and welfare”; and
- Mr Carroll’s conduct was in breach of Karingal’s Code of Conduct, its Work, Health and Safety Policy and its Bullying and Harassment Policy.
Mr Carroll acknowledged that he was aware of Karingal’s policies and that breaches of the policies would be addressed either informally, through counselling methods, or formally.
The Commission’s decision
The complainants provided evidence, and the Commission accepted, that Mr Carroll’s behaviour made them feel threatened and intimidated, causing stress and anxiety and having an effect on their safety and welfare.
The Commission found that Mr Carroll was well-intentioned and that he believed he was doing his best by his employer and his staff.
Nevertheless, the Commission ultimately decided that Mr Carroll’s conduct was in breach of Karingal’s workplace policies and that was a valid reason for Karingal to terminate Mr Carroll’s employment.
Mr Carroll’s application for unfair dismissal was therefore dismissed.
Key points to take from this case
Workplace policies are important documents that set out the standard of behaviour that is expected of your employees.
However, simply having these policies in place is not enough – you must ensure that they are given to, or made available to employees, so that the employees are aware of these policies. Ideally, this should occur on or before the employee commences his or her employment and whenever updates are made to the policies or codes of conduct.
It is a good idea to obtain the employee’s acknowledgement of having received the document (for example by requesting the employee sign acceptance of the document) so that, if the need arises, you can prove that the policy was brought to the employee’s attention.
Karingal’s well-drafted workplace policies allowed Karingal to successfully defend Mr Carroll’s unfair dismissal application.
A serious breach of a workplace policy, particularly when the conduct results in behaviour that is unlawful, can be grounds for termination.
Employers should ensure that they have well-drafted workplace policies in place so that employees understand what is expected of them in the workplace. These should be brought to the employee’s attention and reviewed regularly.
If you or someone you know wants more information or needs help or advice in relation to their workplace policies, please contact us.