FWC: Despite valid reason, employee dismissal unfair following ‘tick and flick’ training on workplace policies

The Fair Work Commission has yet again highlighted that if employers are seeking to dismiss an employee on the basis that they breached a workplace policy, they must be able to clearly demonstrate that the employee had been provided with copies of the policy and had received comprehensive and interactive training on the policy.

Key Facts – Ramlan Abdul Samad v Phosphate Resources Ltd [2024] FWC 2868

The employee, Mr Samad, was employed as a truck driver on Christmas Island and had been engaged by Phosphate Resources Limited (Phosphate Resources) for approximately 20 years.

In or around April 2024, Mr Samad began making inappropriate remarks to his colleague, Mr Rahman, saying that he knew “how to suck the boss”. Despite Mr Rahman’s repeated requests for Mr Samad to stop making such comments, Mr Samad continued to bully Mr Rahman.

Phosphate Resources eventually launched an investigation into Mr Samad’s conduct and identified that his behaviour was in breach of several of its workplace policies (including a Code of Conduct, a Standards of Behaviour Policy, an Anti-Discrimination and Harassment Procedure and a Psychosocial Safety Policy). As a result, Mr Samad was dismissed for serious misconduct.

Mr Samad challenged the dismissal, claiming that he was unaware of the workplace policies in which Phosphate Resources relied on to dismiss him.

Decision

While the Fair Work Commission agreed that Phosphate Resources had a valid reason to dismiss Mr Samad, Deputy President O’Keefe found that Phosphate Resources’ failure to properly communicate the workplace policies on which they relied to terminate him, along with the challenging job market on Christmas Island, his lengthy tenure and unblemished employment record, meant that his dismissal was harsh, unjust and unfair. Phosphate Resources was ordered to pay Mr Samad $33,076.13 in compensation.

‘Tick and flick’ training insufficient

In his decision, Deputy President O’Keefe criticised the way in which Phosphate Resources communicated its workplace policies to its employees.

The toolbox meeting, in which the Code of Conduct was introduced, was scheduled to last 30-minutes and had 23 employees in attendance. Deputy President O’Keefe stated that the duration of the toolbox meeting was not “conducive to explaining and promoting serious workplace behavioural requirements to employees, particularly in an environment where there may have been some language barriers”. Instead of effectively training staff, Phosphate Resources’ merely facilitated a “tick and flick” exercise.

The People and Culture Manager at Phosphate Resources conceded under cross-examination that she could not be certain if a copy of the Code of Conduct had been provided to employees after the toolbox meeting. Further, when questioned how and when the other workplace policies had been rolled out, she was unable to provide any satisfactory answers.

Key takeaways

Where employers seek to discipline (or dismiss) an employee on the basis that the employee had breached a workplace policy, the outcome of this case ought to be a timely reminder for employers to ensure they can demonstrate that:

• Employees have been provided with copies of workplace policies; and
• Comprehensive and interactive training has been facilitated, which is customised to the workforce.

Want to know more?

If you need assistance preparing workplace policies, training employees on your workplace policies, or simply want to discuss the matters addressed in this article, please contact our Workplace Relations Hotline on 1800 RETAIL (738 245).