It is of the utmost importance that when employer’s implement new workplace policies, that they provide sufficient notification of these changes to their employees. The reason for this is twofold. Firstly, that employee’s are aware of the new requirements and can implement them in their day to day work; and secondly, in the absence of such notification, an employee can raise their ignorance of a workplace policy as an objection to termination.
This was the issue before the Fair Work Commission in the recent decision of Con Perry v ComfortDelGro Cabcharge Pty Ltd T/A Hillsbus Co Pty Ltd.
Mr Perry was employed as a bus driver for Hillsbus. On 21 October 2015, a passenger complained that they had seen Mr Perry touching his phone on two separate occasions.
Hillsbus subsequently suspended Mr Perry citing that his performance fell short of the standards expected by the company. Hillsbus referred to the Road Rules 2014 (NSW) which prohibits the use of mobile phones, including listening to music whilst operating a vehicle. In addition, the Hillsbus Drivers Guide and Policy prohibited bus drivers from using mobile phones or similar device whilst operating a bus.
Mr Perry represented himself before the commission, alleging that his dismissal was unfair and sought to be reinstated to his position.
At the hearing, Mr Perry explained that he was listening to music on an old mobile phone that had no sim-card. Therefore he tried to argue that he was not in breach of the policy because he was not using a working mobile phone.
The Commission noted that Mr Perry had been given a copy of the Drivers Guide and Policy but had not been provided with further updates to the policy. In addition, the Hillsbus policy was ambiguous as to how it applied to music devices.
There was no definition of what a ‘small device’ was yet bus drivers were allowed to listening to music on radios and MP3 players.
The Commission ultimately found that Mr Perry’s dismissal was harsh, unjust and unreasonable.
There are a number of important reminders that employers can take away from this decision:
- To notify employees of changes to policies, preferably before they are implemented.
- Training is a beneficial way of making sure employees understand any new changes to policies
- It may be wise for employer’s to make written records as evidence of training and notification of changes to workplace policies.
- To ensure that copies of policies are accessible to employees
- Make sure policies are drafted clearly and without ambiguity