FWC has ruled unfair dismissal despite poor behaviour from an employee. A psychosocial hazard policy labelled a "tick & flick" exercise played a key role in this case costing the organisation $33,076.13. The details and insights of this case are below.
Details of the case
- Ramlan Samad was repeatedly telling another employee they were "sucking up to the boss" and mocking them with gestures mimicking this.
- The behaviour led to a confrontation and Mr Samad was dismissed for breaching workplace policies (Psychosocial Hazards and Code of Conduct).
- FWC found there was a valid reason for dismissal but the dismissal was unfair.
- A key reason it was deemed unfair was there was no proof the Psychosocial Hazard Policy was effectively communicated to workers and it was labelled a "tick and flick" exercise.
- Mr Samad was awarded $33,076.13 in compensation.
Key insight from the caseFWC assesses if compliance is genuine or performative. In this case they didn't just ask for evidence the Psychosocial Hazard policy existed, the organisation had to prove it was effectively implemented and communicated. Here is the key line:"Regrettably, it has all of the hallmarks of a "tick and flick" exercise designed to demonstrate compliance."
Proving genuine compliance
What can we do to prove genuine compliance and and not just a "tick and flick" exercise? Here is what the Deputy President said in relation to this:
- Record keeping: The FWC did expect some record keeping proving the policy had been rolled out effectively. "In the absence of some records or other indication, I am not satisfied."
- Training: The FWC suggested an "interactive training course dealing with not just the "what" but also the "why"". They stated they were satisfied that a course like this "may have changed his behaviour" particularly if everyone understood "the consequences" for such behaviour. There was also a reference to "timeframe", suggesting that 30 minutes wasn't enough (this is worth considering).
If you are looking at options for leadership training, Martyn Campbell has received exceptional feedback for half day workshops. Please reach out here and we can link you with Martyn. Below are the comments from the FWC.
This case is not dissimilar to the SA Support Services case involving Martyn Campbell. The organisation was fined $72,000 for not protecting staff, with one of the main factors being not making workers aware of risks and controls. Again, in this case the organisation had taken steps but it was decided that "its measures were seriously deficient". Lack of awareness and accessibility cost the organisation.
In both cases, policies were in place but they didn't prevent fines and payouts. It suggests that in the court of law workplaces are judged on execution (what was actually done) and evidence (documentation, training records, consultation logs, corrective actions etc.), and less so on intent. This is particularly true now with the focus on positive duty. With that in mind, here are two questions to consider:
- Are workers aware of and do they understand the risks, controls and policies in our workplace?
- How can we prove that they are?
Being able to confidently answer these will ideally prevent ending up in court, but if not, at the very least it will strengthen your case. It might seem complex and tiring but doing this can actually be straightforward. Reach out here if you would like to discuss this with a specialist.
Thank you for reading, we hope you found this insightful.
