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Practice what you preach: perennial policy pitfalls

Too often organisations approach the adoption of workplace policies or procedures with an attitude of ‘set and forget’. The recent case of Jennifer Watts [2018] FWC 1455 demonstrates how policies can backfire when they aren’t properly followed.

Ms Watts was the subject of an investigation by her employer, Ramsay Health Care, regarding her behaviour and performance, based on complaints made by her colleagues. The complaints against Ms Watts were ultimately not substantiated and, in responding to the allegations, Ms Watts claimed the complainants were behaving unreasonably towards her and trying to get her fired.

Ramsay did not investigate Ms Watts’ complaints, even though she provided contact details for ex-employees whom she said would (and in fact did) verify her complaints of bullying behaviour. Ramsay claimed that Ms Watts had not provided sufficient particulars to enable an investigation to be undertaken. However, nothing in Ramsay’s detailed policy stated that such information was necessary for an investigation.

Furthermore, nothing was done to ascertain whether the complaints made against Ms Watts were vexatious or malicious, despite the fact that Ramsay’s policy specifically prohibited such conduct.

Viewed collectively, this course of conduct constituted selective enforcement and non-enforcement of a workplace policy, and formed part of the justification for the imposition of stop-bullying orders by the Fair Work Commission.

Tips for employers:

  • Workplace policies and contracts of employment should explicitly state that an employer’s policies are non-contractual, and that they constitute reasonable directions to employees, but do not impose binding obligations upon the employer;
  • Draft policies in a manner that allows some flexibility, which helps ensure that action taken by employers appropriately fits the circumstances, and also means it is more difficult for you to be ‘caught out’ not following them because of the particular circumstances at hand;
  • If you are responsible for implementing investigations, disciplinary or other action on behalf of an employer, make sure you always consider relevant policies and procedures, and act consistently with them.

If you require assistance with drafting or reviewing your workplace policies, please contact our Workplace Relations team.

This article was written by Barney Adams, Lawyer – Workplace Relations.