The holiday season, a time for festive cheer and workplace celebrations, often presents unique challenges for employers. As workplaces begin their end-of-year celebrations, the case of
Samad v Phosphate Resources Ltd T/A Christmas Island Phosphates [2024] FWC 2868 (
Samad v Phosphate Resources Ltd) offers some timely lessons for employers regarding the critical importance of proactive education on workplace policies and clear communication about unacceptable workplace conduct.
Samad v Phosphate Resources Ltd
In
Samad v Phosphate Resources Ltd, Mr Samad, a truck driver with 20 years of service, was dismissed for repeated inappropriate comments and gestures towards a colleague. The remarks, which included sexual innuendos and mocking references to complaints of harassment, led to an altercation between the two colleagues. Despite Mr Samad being informed of the harm caused by his actions, he continued his behaviour. Following an investigation, Phosphate Resources terminated Mr Samad's employment for breaching company policies.
Mr Samad challenged his termination in the Fair Work Commission through the unfair dismissal provisions. He stated that, essentially, he was not aware of the policies that the employer alleged he had breached and that “
employees should be made aware of policies if the employer intends to hold them to the standard of the policy.”
The Fair Work Commission ultimately ruled that while there was a valid reason for dismissal, the decision was harsh and unjust due to inadequate communication and training regarding the workplace policies the employer relied on to terminate Mr Samad. The Fair Work Commission emphasised that employers cannot rely solely on the existence of company policies, as policies must be effectively implemented and understood by employees to be lawfully enforced.
Preparing for the Holiday Season
This ruling leaves several critical takeaways for employers that are not to be forgotten as we enter the festive season, a time where the lines of professionalism can become blurred at end of year celebrations.
Specifically:
- Employers must keep in mind the positive duty to prevent unlawful behaviours under the Sex Discrimination Act 1984 (Cth): Recent changes to Australian workplace laws impose a positive duty on employers to proactively eliminate sexual harassment, sex-based harassment, and discrimination. This shift requires employers to focus on preventative measures rather than merely responding to incidents as they occur.
- Policies should be clear in their objectives: A policy is, in effect, a lawful and reasonable direction to an employee to act in a certain way, or refrain from certain conduct. Policies should, therefore, be clearly drafted to ensure employees are aware of what amounts to unacceptable behaviour in the workplace and the consequences that will follow a breach of said policies.
- Policies should be effectively communicated: Having workplace policies on bullying, harassment, and unacceptable conduct is insufficient unless employees are made aware of and understand them. Regular, interactive training sessions on the workplace policies and tailored to the workplace’s cultural and linguistic needs are vital.
- A policy is worth little if it cannot be enforced: Employers who fail to ensure employees are aware of and understand workplace policies may struggle to defend subsequent proceedings in the Fair Work Commission where they take action to terminate an employee on the basis of that policy.
- Communications about end of year celebrations are an opportunity to reiterate your expectations regarding unacceptable workplace behaviour to employees: Announcements to the workforce about festive events are a timely opportunity to remind employees about:
- Your relevant workplace policies and where to find them (think Bullying and Harassment Policy and Complaints Policy);
- The fact that alcohol will be served (if applicable) and employees are expected to consume alcohol responsibly;
- When the work event starts and end – specifically, after a certain time the event will end and anyone who chooses to continue engaging with their colleagues are doing so in their personal time (to assist in reducing the risk of vicarious liability for employee acts after the function ends); and
- Your expectation that employees should ensure they have a safe means of transport home (this may extend to offering taxi chits or reimbursement for taxis home at events where alcohol is served).
How Hicksons can help
If you have any questions about your rights, entitlements, or obligations in relation to the workplace, please do not hesitate to contact
Warwick Ryan, Partner in
Workplace Relations, Employment & Safety.
Article written by Hicksons' Partner Warwick Ryan and Paralegal Grace Beddow.