The Fair Work Commission recently ordered the reinstatement of two employees who had been dismissed for failure to comply with a company policy, partly because it was not satisfied that the policy had been properly brought to the employees’ attention.
The case in question involved the termination of two long-serving employees for breach of their employer’s travel policy, which regulated when and how employees could use company-issued credit cards to pay for work-related travel. This policy effectively tightened previous practices in relation to travel-related expenses that would be met by the employer.
The policy had been issued in early 2013 and the employees in question had misused their company-issued cards (in breach of the policy) on at least 15 occasions since then (e.g. by using VIP hire cars instead of metered cabs, by paying two fares for a shared hire car trip, and using the cards to travel to training courses). The employer dismissed the employees based on a failure to comply with the policy, as well as their failure to act honestly and in the best interests of the employer (including in relation to failure to properly explain “double” use of cards on shared trips).
The employees brought proceedings against the employer alleging unfair dismissal. In their submissions, both of the employees stated that they had not been provided with a copy (or access to) the policy prior to the alleged breaches, and were not aware that they were not permitted to use non-metered hire-cars or to pay separately for shared trips. They also put on evidence that prior to the introduction of the policy, there was no express prohibition on the use of hire cars. In response, the employer gave evidence that all employees had been required to sign the policy when it was issued. However:
it could not produce signed copies for the two employees; it could not produce evidence to show that it had conducted any training or education regarding the new policy; and its own witnesses appeared “confused and lacked knowledge about the [policy]”.
The Commission was critical of the employer’s roll-out of the policy, and the lack of evidence to demonstrate that it had taken adequate steps to bring the policy changes to the employees’ attention. It relied on these matters, in part, in ordering the employer to reinstate the employees. In making these orders, the Commission also had regard to the employees’ long service, unblemished records, apologies and contrition.
The lesson here is that informing and educating employees on new policies and policy changes is necessary in order for an employer to rely on a policy breach to take disciplinary action. Importantly, if an employer is going to go to the trouble and effort of rolling out policy changes, documentary or other electronic records should be kept so that the employer can later prove that a sufficient roll-out has occurred.
Chew and Leong v Qantas Airways Limited  FWC 4885