Workplace behaviour legislation has changed significantly over the past two years, and employers are now facing harsher penalties for non-compliance.
A pivotal recent case settled by the Fair Work Commission (FWC) underscores the risk of a tick-and-flick approach. It’s a clear sign that policies alone are not enough; employers must ensure that they are meaningfully implemented and understood by every team member. This shift marks a turning point for organisations navigating complex workplace behaviour standards.
In this case, the FWC ruled that a worker who made repeated inappropriate comments about performing oral sex on their boss was unfairly dismissed. The employer argued that the employee’s actions created a hostile work environment, meriting immediate dismissal. While the Commission agreed there was a valid reason for disciplinary action, it found the dismissal “harsh and unjust”.
Inadequate policy rollout and training
The FWC pointed to a crucial oversight – the employer’s insufficient policy rollout and employee training. The worker, it concluded, had not been sufficiently exposed to or trained on the relevant workplace behaviour policies. This lack of exposure, paired with the worker’s unique employment situation on Christmas Island, meant the employee was likely unaware that his behaviour was in violation of company expectations.
In the Commission’s view, if the worker had received comprehensive training, he probably wouldn’t have engaged in the offending behaviour.
What does this mean for employers?
The FWC is sending a clear message to all employers that workplace behaviour policies must be implemented rigorously via effective communication and training. I encourage organisations to consider the following suggestions:
- Policies without training is not enough: Company policies are only as effective as the communication and training that goes with them. The FWC’s ruling that this worker lacked adequate exposure to policies is a wake-up call for employers to ensure that every employee understands company expectations through effective and accessible training.
- Frequent and inclusive policy rollouts are essential: This case clearly demonstrates that policies shouldn’t just be developed, introduced, and left to gather dust. Employers need to conduct regular refreshers to accommodate any new hires and to ensure that all employees have a solid grasp of behaviour expectations.
- The onus is on employers to adapt to legislation: The Positive Duty guidelines in the Respect at Work Act puts the onus on employers to do all that is reasonably practicable to prevent sex discrimination and harassment. To meet this responsibility, employers must consider implementing control measures, providing access to training, and taking a proactive approach.
- Non-compliance can be costly: Failing to enforce policies can lead to severe repercussions – legal, financial, reputation, employee wellbeing and productivity. Employers face the risk of unfair dismissal claims, legal disputes, and a loss of workplace morale.
A call to action for employers
While some may consider the new regulations as an added layer of compliance, I believe it’s a positive step towards creating safer, more respectful work environments in which everyone can thrive. I encourage employers to take a proactive approach incorporating three practical steps:
- Audit current workplace behaviour policies and identify any gaps in accessibility or understanding. Contact me for a complimentary copy of our Risk Audit Tool.
- Ensure training is effective by ensuring that managers and employees have access to regular refreshers that clarify expectations around workplace behaviour.
- Foster a culture of accountability, where all team members are encouraged to report and discuss behaviour issues in a safe and supportive environment.
The FWC has made it clear that employers must go beyond the basics; policies should be active, meaningfully implemented, reinforced with ongoing training and regular communication. This case serves as a powerful reminder that inaction on these fronts is no longer accepted. Employers need to understand that true compliance is about fostering awareness, ensuring understanding, and enabling employees to make informed decisions.
At EEO Specialists we support organisations in the workplace behaviour and compliance space. We’ve responded to the increasing focus on this subject by creating an innovative Workplace Culture Review Pack to help organisations along this important journey.
Contact me if you would like to have a confidential discussion about how we can work together to ensure safer, more respectful workplaces.
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The author, Franca Sala Tenna, is a lawyer and acknowledged workplace behaviour and compliance expert. She is also the Founder & Director of EEO Specialists, and Online Compliance Training.