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6 June 2013 Workplace Policies - What are they good for?

By Laura Sowden, Solicitor


In Brief

Employers interested in keeping the costs of their business down often view workplace policies as an unnecessary expense. However, when things go wrong in a workplace the catchcry is too often "if only we had a policy!" There are definite benefits to workplaces policies, the most important is that workplace policies are a sound risk management strategy for employers.
 


What is a workplace policy?

A workplace policy is a concise formal statement of principles which indicate how an employer and its employees will act in a particular area of its operation. Policies provide employees with the approved way of behaving in certain circumstances and outline the standards and process an employer will apply in certain circumstances.
 

Why would you have policies?

Policies provide clear guidelines on behaviour and help create desirable workplace cultures
Policies provide staff with clear guidelines as to appropriate behaviour at work. Policies can address behaviours such as swearing, respect for colleagues and conduct with customers and help build a desirable workplace culture.
 
Workplace policies are easy to change and update as the law or business changes
Including guidance on employee behaviour in employee contracts and agreements is fraught with problems. An employee contract or agreement stands still frozen in time for the entire period of employment and changing them is an expensive process. A workplace policy, on the other hand, is drafted by an employer. It can be changed easily and updated to address developments in legislative obligations or in the nature of the business.
 
 

What are the risks of not having policies?

It is more difficult to deal with bad behaviour
Policies offer protection to employers by ensuring that when employee behaviour cross the line of acceptability the employer has a policy document binding the employee and making it clear that the particular behaviour is not acceptable. Through drawing a clear line of acceptable behaviour, policies enable employers to consistently and fairly maintain workplace standards.

Policies also put employees on notice that the particular behaviour may result in disciplinary action, thus providing employers with a stronger position from which to act when an employee's behaviour contravenes a policy.

An example of this is with employee misuse of work equipment. A policy which outlines that employees must not use the employer's equipment such as computers, mobile phones, tablets, to view inappropriate material (for example sexually explicit material) can help protect employers.

A policy in this situation can help protect employers from liability for any sexual harassment which involves the use of sexually explicitly material on such equipment. In addition, such a policy also makes it easier to discipline an employee for the inappropriate use of equipment, as an employee cannot claim – "well I was never told not to do this." 
 
 

The process employer's use in addressing bad behaviour may come under negative scrutiny
A grievance policy or a disciplinary policy codifies the stages of investigation of allegations of bad behaviour and the consequences. Policies are of great assistance when dealing with examples of misconduct and implementing disciplinary procedures. They also save time in that the policy provides the required path forward and less time is spent considering what steps should be taken.

Without such policies employers run the risk of being seen to fail to apply procedural fairness and apply processes consistently. Courts and Tribunals will examine whether or not principles of procedural fairness have been applied in investigative and disciplinary processes.
 
Employers are less protected when employees claim unfair dismissal
Where an allegation of bad behaviour (such an inappropriate use of equipment) is made, then the investigation process followed and disciplinary action (in this instance dismissal) taken, a strong set of policies can help an employer defend any unfair dismissal claim an employee brings. Without a policy, which the employer can demonstrate the employee has breached and another policy which outlines the investigative and disciplinary process an employer used the employer can come awry in the event of a claim.
 
Employers run the risk of being found to have breached legislative obligations
Anti Discrimination Obligations
Under Federal anti discrimination legislation employers (including directors) can be vicariously liable for employee discriminatory behaviour. An employer policy which clearly states conduct which is discriminatory is not acceptable in the workplace can help protect an employer from being found vicariously liable for any discriminatory actions of an employee. For this reason, an anti discrimination policy is an essential tool in the employers risk management tool kit.

Health and Safety
In the instance of health and safety obligations employers have a duty to provide a safe place and safe system of work.  Strong workplace policies which outline proper health and safety practices can do three things:
 

  1. Help prevent workplace injuries which lead to increases in workers compensation payments and loss of an employee for a period of time.
  2. Help discharge the employer's duty to provide a safe system of work.
  3. Help prevent employer liability for employee injuries in a situation where an employee has not followed the proper health and safety policy. That is, the employer may be able to argue they have provided a safe workplace and it is the employee's actions in not complying with the relevant workplace health and safety policy which resulted in the injury.     

 

Common types of policies

Here are several common types of workplace policies:

  • Grievance policy – outlines the process for addressing workplace complaints.
  • Health and Safety policy – outlines safe work practices.
  • Anti Discrimination policy – states that discrimination is not allowed.
  • Bullying and Harassment policy – states bullying and harassment is not allowed.
  • Social Media policy – outlines acceptable social media use and protects against employee misuse.
  • Workplace Surveillance policy – advises employees of workplace surveillance that is occurring.
  • Dress Code policy – can outline expected type or mode of dress and appearance, for instance business attire for office work.
  • Computer, Internet and Email Use policy – state what is unacceptable use of resources provides to employees including computers, internet and email use. Such a policy can also address use of mobile devices, laptops or tablets. 
  • Codes of Conduct – holistic policy documents which deal with a broad range of workplace behaviour and entitlements.

The above is by no means an exhaustive list; many employers have policies which outline various staff benefits, the process of expense reimbursement and other issues.
 
 

Conclusion

Workplace policies are a vital tool for employers and they have multiple benefits, including providing clear guidelines on behaviour, investigative and disciplinary process in addition to outlining consequences. 

Employees should be conversant with workplace policies which affect their employment. Vigilant application and use of policies by employers and employees can help prevent employee complaints escalating in addition to providing the appropriate tools to deal with them in the best way.

Employers also need to be aware when using policies and in the employment contracts they use that policies may inadvertently be given the strength of contractual terms. For more information on this read our article The legal status of workplace policies.
 
If you are interested in seeking advice about existing workplace policies, or are looking to implement policies in your workplace please contact Laura Sowden.
 


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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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