The Fair Work Commission says employees must now be “properly trained” in policies about workplace conduct, “not through a tick-and-flick exercise”, reports industrial law expert RICHARD CALVER. 

One of the workplace relations cases that is memorable from 2024 relates to a finding that employees must be “properly” trained in workplace policies.

This is in order for an employer to rely on them when dismissing an employee, even when calling out behaviour that seems entirely inappropriate.

It is common for workplace policies to be explained in what are known as “toolbox talks”. A toolbox talk is a meeting, formal or informal, held with employees to tell them about safety and operational matters and to introduce topics they should be aware of: such as standards of behaviour in the workplace. 

But in the case that considers the necessary training in workplace policies that must be given in order for employers to rely on them, Deputy President of the Fair Work Commission Peter O’Keefe, said that employees must be “properly trained” in policies about workplace conduct. 

He has set a high bar, one that seems to dismiss presentations about workplace policies at tool box talks as sufficient. This “proper training” was described as occurring “not through a tick-and-flick exercise but through a culturally and linguistically appropriate interactive training course that dealt with not just the “what” but also the “why”’ of policies introduced to deal with harassment and inappropriate workplace conduct. 

The case in which these considerations came to the fore involved the termination of employment of a 62-year-old truck driver from Christmas Island Phosphates. 

He was instantly dismissed for serious misconduct that involved an allegation of sexual harassment when he consistently accused another worker of “sucking the boss’s dick” and the evidence showed he had made this comment repeatedly and had also repeatedly joked with other employees in front of the bullied employee about making a harassment complaint. 

The tension between the two employees was such that the dismissed employee had threatened to hit the other employee during an altercation. Despite the employee making these offensive comments to his co-worker, O’Keeffe found the termination to be harsh and unjust. 

The deputy president made it clear that an employer cannot, and indeed does not need to, have in place a policy “for everything.” 

He said: “There are some behaviours that are so extreme that they do not need to be codified and any reasonable person would know not to engage in them. It might perhaps be hoped that this extends to other unwanted behaviours such as bullying and sexual harassment, but experience teaches that this is not the case.” 

Against this background, the deputy president decided that lack of exposure to and understanding of the relevant policies “may have been a contributory factor” in the dismissed employee’s behaviour”. 

This factor was in the mix of considerations favourable to the dismissed employee, despite the deputy president saying that valid reasons for termination existed. 

But when combined with the employee’s length of service (circa 20 years), age and limited employment opportunities on Christmas Island, his termination of employment was considered harsh and unjust. In a subsequent decision, Deputy President O’Keefe declined to reinstate the truck driver, but awarded him just over $33,000 in compensation. 

These findings stand as a reinforcement for employers to ensure that first they have workplace policies in place, especially to deal with harassment, and secondly that those policies are presented in such a way that they are “properly” explained and solid evidence of the training exists. 

“I believe that working with good people matters because then the work environment is good. If there is a sense of respect and belief among the people you work with, that is when good work is done.” –Ranbir Kapoor