Legal
Issue No. 59 - June/July 2011
Contract, not policy, key to policing staff conduct
by Kate Sheridan
Increasingly, employers aim to manage the behaviours and conduct of employees at work by way of workplace policies.
But can employers rely on policy to dismiss? What needs to be in the contract of employment for an employer to rely upon a breach of policy by an employee?
Workplace policies now commonly include antibullying and harassment, workplace safety, IT usage, fitness for work and dress standards among other conditions.
While policies aim to maintain standards of behaviour and conduct they are often based on statutory requirements. Consequently, management may want to rely on policies to uphold termination decisions and to defend vicarious liability in circumstances of sexual harassment.
Several factors influence whether management can rely on a policy but fundamentally, it depends on how the policy has been incorporated into the contract of employment.
The most straightforward way of ensuring policies have contractual force is to refer to them in a written contract or letter of offer and make it clear they are part of the contract1.
It is essential to make the policy detail known to the employee and, further, that breaching the policy may result in disciplinary action including termination of employment.
Reliance on policy
This principle was tested in the case of Batterham and Others v Dairy Farmers Limited t/as Dairy Farmers [2011] FWA 1230 (29 March 2011). Dairy Farmers successfully upheld the dismissal of seven employees who ignore...
