By Lauren Drummond

The decision of the Fair Work Commission (FWC) in Condello v Fresh Cheese Co (Aust) Pty Ltd (2018) demonstrates the importance of making employees aware of workplace policies and ensuring that they are applied consistently across the business.

The employer, Fresh Cheese Co, summarily dismissed the employee for a breach of its policy that prohibited the use of mobile phones in its production facility. There was no dispute that the worker used his mobile phone during his shift. He had stated that he was concerned about the health of his mother-in-law when he saw that he had a call from his wife.

The worker, who had been employed by the company since 2001, submitted that the mobile phone was not being used in the production area of the facility. He said the room was an unused freezer being utilised as a storage room.

Fresh Cheese Co alleged that the worker was provided with an employee handbook that contained a company policy regarding the company’s “zero-tolerance” approach towards mobile phone use in the production area, and that he had attended an August 2017 toolbox meeting on the subject. The employee denied that he was present during the toolbox meeting.

Decision

The evidence given by Fresh Cheese Co’s two witnesses showed that:

• it could not be proven whether the employee attended the toolbox meeting in August 2017;
• the company did not keep any records of attendees at other meetings where the policy may have been discussed;
• no training records existed that indicated whether the employee had been trained on the employee handbook or that he had even been provided with a copy;
• other employees found to have breached the policy were instructed to put their phones in their lockers and were not subjected to any disciplinary action; and
• supervisors routinely used their phones, including in the storage areas described by the employee.

The FWC found that there was no valid reason for dismissal. Based on the evidence, Fresh Cheese Co had previously taken a lenient approach to mobile phone usage and the policy had not been consistently applied.

The FWC also stated “a company cannot simply produce policies and procedures and expect to rely on them to defend a claim if there is no evidence to support that its employees have been made aware of those documents, trained in the content of the documents and provided with access to those documents.”

In relation to the other factors as to whether the dismissal was “harsh, unjust or unreasonable”, the FWC found:

• the HR manager informed the directors of his intention to dismiss the worker and therefore the decision to dismiss the worker was made prior to giving the employee an opportunity to respond to the reason for dismissal;
• the worker was informed of the meeting only 10 minutes beforehand and was not afforded a reasonable opportunity to request or obtain a support person; and
• the worker had longstanding service with the company and there was no evidence to suggest he had a history of poor performance.

Accordingly, the dismissal was found to be harsh and unfair.

Lessons for employers

The decision demonstrates the importance of ensuring accurate records are maintained in relation to implementation and training on employer policies. It is also important that managers comply with the policies and take steps to enforce them.

Employers should ensure:

• workers sign an acknowledgement that they have received and understood the policy;
• workers attend regular training in relation to their obligations under the policy and their attendance recorded;
• managers are reminded of their obligations to model behaviour in accordance with the employer’s policies; and
• any disciplinary action in relation to breaches of the policy is applied consistently.