Beyond the ‘tick and flick’: Ensuring fairness in workplace policy implementation

As we find ourselves in the thick of the festive season, with end-of-year parties in full swing, employers are revisiting workplace behaviour policies to mitigate the risk of inappropriate conduct. An employee’s breach of a workplace policy is a common and often valid reason to justify a dismissal. When faced with an unfair dismissal claim, employers might feel confident in defending the claim if the employee’s conduct breached the policy and procedural fairness has been afforded.

However, the recent Fair Work Commission (FWC) case of Ramlan Abdul Samad v Phosphate Resources Ltd T/A Christmas Island Phosphates [2024] FWC 2868, highlights the need for more than a ‘tick and flick’ approach when implementing and training employees on workplace policies. In this case, the FWC found that Mr Samad’s dismissal was unfair, despite there being a valid reason for it. A deciding factor in the decision was that Mr Samad was not aware of the relevant policies he had breached and, if he had been informed of the policies, this may have changed his behaviour.

Mr Ramlan Abdul Samad was a long-serving truck driver with over 20 years employment with Phosphate Resources Limited. In 2024, Mr Samad was dismissed for serious misconduct because he made repeated inappropriate comments and lewd hand gestures towards his colleague.

Following an investigation into Mr Samad’s conduct, the employer determined that Mr Samad had engaged in behaviour that violated four key policies, including the code of conduct, and he was dismissed from his employment.

Commissioner Hunt held the employer had a valid reason for Mr Samad's dismissal, however the dismissal was deemed unfair, due in part to Mr Samad’s lack of adequate exposure to and comprehension of the policies he had breached.

Mr Samad argued that it was unreasonable to expect him to comply with policies of which he was not aware, and that he was unaware of all four policies on which the employer had relied.

The employer argued that Mr Samad was informed of the code of conduct during a toolbox meeting in September 2023. This was evidenced by his signed attendance record and that the usual process for implementing this training was that the presentation was given to employees and then copies of the presentation were left for the employees to take. In relation to the other policies (such as standards of behaviour, anti-discrimination and harassment procedure and psychosocial safety in the workplace), the employer was unable to satisfy the Commissioner that these polices had been presented to employees but gave evidence that the polices had been ‘around for a while’ and therefore it was assumed that they had been ‘rolled out.’

Although Mr Samad attended the toolbox meeting and copies of the presentation were available, Commissioner Hunt found that the employer’s process provided no guarantee that the employees would take a copy after the meeting. Further, a presentation lasting only 30 minutes for 23 attendees, was deemed inadequate for effectively communicating appropriate workplace behaviour, especially in an environment with potential language barriers. The Commissioner found that the employer’s approach appeared to be more of a ‘tick and flick’ exercise aimed at demonstrating compliance.

In relation to the other policies, the Commissioner held that given the employer’s evidence about the ‘roll out’ of these policies, it was unlikely that the employees were aware of them.

The Commissioner noted that while extreme behaviours like sexual harassment and bullying might not require specific policies (since any reasonable person should inherently know to avoid such behaviours), experiences shows that this is not always the case. The Commissioner further stated that if Mr Samad had received comprehensive training on appropriate workplace behaviour, which was interactive and tailored to be culturally and linguistically appropriate rather than a mere ‘tick and flick’ exercise, it might have influenced and altered his behaviour. Consequently, the Commissioner held that Mr Samad's limited exposure to, and understanding of, the relevant policies he had breached contributed to the finding that his dismissal was unfair.

If employers want to rely on polices in managing employee conduct, Mr Samad’s case is a timely reminder that employer’s need an approach to implementing workplace policies that ensures employees are comprehensively trained. This includes properly communicating the policy to employees through easy access and providing thorough, interactive training. The training (including refresher training for policies that are already in force) should be appropriately tailored for the workforce to ensure policies are known and actually understood.

Mr Samad’s case related to whether the dismissal could be fair in circumstances where he had not been effectively trained on the relevant policies. However, the Commissioner’s findings serve as a timely reminder of the importance of proper employee training to satisfy other employer obligations. For example, employers have a positive duty to ensure a workplace free from sexual harassment. It is clear from this decision that a ‘tick and flick’ approach to training about appropriate workplace behaviours will not satisfy this duty. Employers need to ensure that all workplace training is robust and appropriately targeted to the recipients of the training.