As we embark on the middle of the year, the Fair Work Commission has heard a number of cases that can serve as examples of how to manage employees in the workplace.
Below are two examples of cases that provide the following key points:
- Redundancy (Severance Pay): where an employer provides what is deemed a suitable alternative employment in redundancy cases and an employee rejects it, the employer can apply to the FWC for a reduction in redundancy pay.
- Policies and Procedures: it is not enough to have policies and procedures in place. Employers should provide sufficient training for employees to not only understand the expected conduct, but also why they are the expected standards and consequences of breaching those standards.
Redundancy
An employer applied under s120 of the Fair Work Act, to reduce the severance pay to $0.00 after the employee failed to accept a suitable alternative position because it did not have a work from home option.
The Fair Work Commission noted that the employee did not have an approved flexible work arrangement under s65 in place, nor did they have a contractual entitlement to remote or flexible working conditions “beyond what was operationally feasible and approved by the employer”.
The employer had offered an alternative position, at the same rate of pay for the same number of hours to be performed at similar times, and at the same level of seniority.
The employee rejected it on the basis that it would stop them from working flexibly to support their postgraduate students as it required onsite attendance during standard working hours.
After working from home 2 days per week under their old role, the employee wanted to continue the WFH arrangement at least a day per week where possible.
Commissioner Chris Simpson found the alternative role constituted “other acceptable employment” within the meaning of s120(1)(b).
He held the employee had “no formal entitlement to the existing working from home arrangement under the old role”, and it was at the employer’s discretion to approve such arrangements.
The employer, therefore, did not have to pay severance payments.
Policies and Procedures
In a recent case, the Fair Work Commission found that a 30 minutes toolbox meeting on company policies and procedures was not sufficient evidence of appropriate training provided to employees but rather a “tick and flick” exercise designed to demonstrate compliance.
In this case, a 62-year-old truck driver with 20 years’ service was terminated for serious misconduct after an investigation, which confirmed that he had repeatedly accused a co-worker of “sucking the boss’s dick” and told colleagues in front of him that the co-worker could not take a joke. The employer terminated him for breaching its code of conduct, anti-discrimination and harassment procedures, and psychosocial safety and standards of behaviour.
Deputy President O’Keefe stated that had the employee been through a culturally and linguistically appropriate interactive training course that dealt with not just the ‘what’ but also the ‘why’ of the policies, he could have changed his behaviour.
Whilst it may not have changed the employees’ personal views, working in an environment where all employees clearly understood the expected standards, why they were the expected standards and the consequences for breach would have reduced the likelihood of the employee engaging in such conduct. As such, the lack of exposure to and understanding of the relevant policies may have been a contributory factor in his behaviour.
It is therefore a lesson for employers on the importance of keeping accurate records of meetings and training provided to employees, and these need to be given within a reasonable time frame.
The BetterHR portal has compliant policies and procedures for businesses to utilise in the workplace. Our trusted advisers are able to support your business when performing redundancies and when implementing policies and procedures.
