Workplace policies are often misunderstood as lengthy documents which sit on intranet pages gathering metaphorical dust. However, if you are an employer, some policies may help reduce your legal liability, particularly with respect to your Work Health Safety (WHS) obligations. They may also serve as a useful tool to effectively and consistently communicate operational matters to employees. On that basis, it is important to understand:

  • what policies are;
  • which policies you should have; and
  • how to effectively implement them, acknowledging their limitations.

What Are Workplace Policies?

Workplace policies are written directions from the employer to employees. As an employer, you have a right to make lawful and reasonable directions to employees. Policies are one way to effectively communicate any such directions.

For example, you may set out directions relating to uniforms in a policy. By doing so, the direction is:

  • consistent across the business;
  • easily accessible by employees; and
  • avoids having to direct each employee individually.

There are two types of policies: core policies and operational policies. Core policies are policies that speak to the employer’s legal liability and include:

  • a WHS policy;
  • an anti-discrimination, harassment and bullying (ADHB) policy; and
  • an information technology (IT) policy.

Operational policies are any other policies that do not speak to your legal liability. Rather, they are a tool to communicate operational matters such as:

  • uniforms;
  • bonuses; 
  • parental leave;
  • expenses; and
  • punctuality.

Operational policies are not necessary but can be a practical tool for you to use.

Why Do You Need Core Policies?

1. Work Health and Safety Policy

If you are conducting a business or undertaking, you have obligations to ensure the health and safety of personnel, including:

  • employees;
  • contractors;
  • visitors; and 
  • volunteers.

Your key obligation is to ensure the health and safety of all workers (and others), so far as is reasonably practicable. What is reasonably practicable will depend on your particular circumstances at the time, including:

  • the likelihood of the risk occurring;
  • the degree of harm which may result from the risk;
  • how much you know about the risk; and
  • whether there were ways to eliminate or minimise the risk and if so, the costs associated with these.

One way of complying with your WHS obligations is by having a WHS policy which sets out:

  • who it covers;
  • that a breach may result in disciplinary action, including termination;
  • your obligations as the employer;
  • obligations of managers;
  • obligations of workers (including volunteers);
  • your business’ consultation process. That is how, when and how often you will meet with workers (and others) to discuss and find solutions to WHS concerns; and
  • your rules relating to alcohol and drugs.

If an employee is injured and claims you are liable for failing to comply with your WHS obligations, you can defend such a claim. Here, you can demonstrate you took all reasonable steps to prevent the injury from occurring. This includes providing and communicating directions in a WHS policy.

For example, if an employee breaks their toe because they were not wearing safety boots, having a WHS policy directing employees to wear safety boots may assist in demonstrating that you took reasonable steps. The policy may not be enough on its own. But the policy, as well as training and a protective equipment checklist, may assist you in defending such claims.

2. Anti-Discrimination, Harassment and Bullying Policy

Your WHS obligations extend to non-physical injuries. This means you are under an obligation to ensure your workplace is free of harassment and bullying. In addition, you can be liable for discrimination committed by your employees while performing their duties.

For example, if a manager is directed to fire an employee on the grounds of race, you as the employer may be liable.

One way to comply with your WHS obligations and your anti-discrimination obligations is to have an anti-discrimination, harassment and bullying (ADHB) policy setting out:

  • who it covers;
  • that a breach may result in disciplinary action, including termination;
  • your obligations as the employer;
  • the meaning of discrimination, harassment and bullying;
  • a direction against discrimination, harassment and bullying; and
  • a complaints procedure.

Similar to a WHS policy, an ADHB policy speaks to your legal liability. 

For example, if an employee bullies another, having an ADHB policy that directs employees not to bully one another may help demonstrate that you took reasonable steps to prevent this from occurring. Again, the policy may not be enough, but the policy, as well as training, may assist you in defending such claims.

Also, employees breaching an ADHB policy may not be sufficient grounds to terminate their employment and should be assessed on the facts.

3. IT Policy

An IT policy typically sets out:

  • who it covers;
  • that a breach may result in disciplinary action, including termination;
  • when workers can use emails and social media (this excludes emailing or use of social media without any connection to the employment);
  • prohibited uses (like using IT to bully, harass and discriminate);
  • ownership of intellectual property (IP), including email and social media content; and
  • workplace surveillance.

Similar to WHS and ADHB policies, an IT policy may assist you in meeting your WHS and anti-discrimination obligations. For example, if an employee sends a harassing email to another employee, your direction against such use of emails may assist you in defending a claim.

In addition, the IT policy includes terms relating to workplace surveillance. Each state has different legislation governing your obligations if you choose to conduct workplace surveillance.

For example, if you sought to review harassing emails, you could only do so in compliance with workplace surveillance laws. In NSW, there is a requirement for surveillance to be conducted in accordance with the employer’s policy. Although there are no comprehensive requirements about what the policy must include, you need a policy which sets out some parameters about how you will conduct surveillance.

Even if you conduct surveillance outside the scope of workplace surveillance laws, there may be an argument to say that the emails or other content you are reviewing forms part of your IP. On that basis, you could review emails (or other content) without concern for workplace surveillance laws.

What Are the Limitations to Policies?

A policy is meaningless unless it is meaningfully communicated to employees and consistently enforced. Policies may be ineffectively communicated if you do not provide policies when employees are hired. They also may be ineffective if they are only available in hard copy upon request. Depending on your particular context, you may also choose to run training. If management creates and supports a culture of bullying, a complaint may be difficult to defend with a policy, because it has not been consistently enforced.

Key Takeaways

Policies can act as the first line of defence for any claims where you, as an employer, may be liable. As such, you should implement three core policies for: 

  1. Work Health Safety;
  2. Anti-Discrimination, Harassment and Bullying; and 
  3. IT (which also ensures compliance with state workplace surveillance laws).

However, you must meaningfully communicate and consistently enforce these policies. If you need assistance writing your policies or understanding your obligations at law, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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