AMMA’s Principal Consultant Bill FitzGerald

AMMA Principal Workplace Relations Consultant Bill FitzGerald analyses why a recent Fair Work Commission (FWC) decision to uphold an unfair dismissal claim provides a timely reminder on employers having a well-established mobile phone policy.

In a single member decision last month, Commissioner Katrina Harper-Greenwell determined there were multiple shortcomings by an employer in summarily dismissing a long-serving factory employee for an alleged breach of the company’s mobile phone policy.

Background

In this case, Rosario (Ross) Condello v Fresh Cheese Co (Aust) Pty Ltd [2018] FWC 2025 (9 April 2018), the employer summarily dismissed the employee after using his mobile phone in a food production area.

According to the facts, the employee walked around to a freezer room for some privacy to call his wife back as she was looking after his ill mother-in-law.

Evidence revealed the food production areas where mobile phones were prohibited were poorly defined, and it could not be established the employee had participated in training sessions or possessed a copy of the employee handbook.

The employee conceded he understood using his phone was in breach of the rules, but was unaware it could result in dismissal.

The employer unsuccessfully attempted to rely on undocumented prior warnings and was unable to provide any disciplinary policy. It was found the HR manager took a preemptive approach by deciding in advance to terminate the employee “to make an example of him.”

The decision

Commissioner Harper-Greenwell found there was a denial of procedural fairness which also made the dismissal unfair.

There was no evidence that the employee was offered a support person, and the employer was found to have applied an inconsistent approach in disciplining others who also used their mobile phones on the premises.

In this case, the Commissioner found implementation of workplace policy was “poorly organised (with) 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 these documents, trained in the content and provided with access to the documents,” the Commissioner said.

The Commissioner found the employer was unable to establish a zero tolerance policy was in place and therefore the employee could not have been in breach of such a policy.

In finding the dismissal to be both harsh and unfair, the Commissioner requested submissions be made to remedy before she finally determines the matter.

Implications

This decision makes it patently clear that proof of attendance at training sessions and knowledge of policy requirements are essential prerequisites.

It also highlights why it is the responsibility of employers to ensure all policies and procedures are followed and enforced if they seek to rely on them to defend an unfair dismissal application.

In order to sustain a defensible dismissal, this case highlights a number of key learnings for employers.

Firstly, it is reasonable for employers to ban the use of mobile phones in critical areas where safety is imperative, such as in locations where monitoring equipment is in place and mobile phones may impact that equipment.

Employers also need to be able to prove that employees have knowledge of company policy.

This can be achieved either by way of attendance at induction or roll out and/or toolbox meetings, or the receipt of documentation.

A number of recent FWC decisions make it clear that the onus is on employers in relation to this aspect.

Employers must also be able to prove that there has been consistent application of the policy.

A dismissal will generally be deemed unfair if an employer gives a mild warning in one case and terminates another employee for the same offence.

When a breach is detected, employers should tread slowly and fully investigate incidents before determining outcomes.

Finally, where discipline (including termination) is contemplated, the employee should be advised in advance of the outcomes and be offered a support person prior to interview.

Once the interview has been completed, employers should consider any explanation or mitigating factors before deciding on appropriate action.

This area has become increasingly complex for employers with the additional advent of the general protections (adverse action) provision in the Fair Work Act. For further advice about themes covered in this case summary, contact AMMA’s Principal Consultant based in AMMA’s Hobart Office, Bill FitzGerald.