The importance of policies
Recent cases have highlighted the importance of correctly implementing and updating company policies and procedures before matters come to a head between employers and employees.
Elisha v Vision Australia [2024] HA 50
The High Court case of Elisha v Vision Australia concerns Vision Australia initiating a disciplinary process against one of its employees, Mr Elisha, after receiving a complaint about aggressive and intimidating behaviour while he was on a business trip. The disciplinary process ended with Mr Elisha’s termination.
Mr Elisha’s employment contract required him to comply with Vision Australia’s policies and stated that he could face disciplinary action for breach of those policies. Vision Australia asserted that his conduct was a serious breach of their policies regarding behavior, and that he had a history of aggressive behaviour and of making excuses for his conduct.
The court found that Vision Australia did not comply with their own policies and procedures. Their disciplinary procedure set out clear steps to be followed, including formal meetings, written notice of allegations, and opportunities to respond. Despite this, Vision Australia concerns regarding Mr Elisha’s alleged historical conduct were not raised with him during the process and he had no opportunity to respond before his employment was terminated.
Vision tried to argue that its policies were guidelines to be followed, not enforceable obligations. The High Court rejected this view and held that employment contracts establish reciprocal obligations – if an employer disciplines an employee based on its contractual policies, it must also adhere to those policies in a binding manner.
Craig Hancock v Sydney International Container Terminals Pty Ltd [2025] FWC 516
The Fair Work Commission has recently reinstated an employee who was terminated for breaching his employer’s drug and alcohol policy on the basis that the reason, while valid, was harsh and unreasonable.
Around 10 years after Mr Hancock joined the company, it changed its drug and alcohol policy. One of the changes included a strict requirement for all persons on site to be alcohol free. Before the change, the requirement was a blood alcohol content level of 0.02% or less.
Employees were notified of the change of policy by emails sent to the employee’s personal email addresses, text messages to their personal phones advising a copy of the policy had been emailed to them, mention of the change of policy in a staff tool box meeting and the display of the new policy in multiple areas on site.
Mr Hancock’s dismissal involved a drug and alcohol test he submitted for an investigation into a workplace incident. He returned a positive blood alcohol content level of 0.017% and mentioned to the test administrators he was below the ‘cut off’ policy level.
The Fair Work Commission did not consider the above methods of notice to be satisfactory methods for advising employees of the policy changes. It also did not consider it enough to merely notify employees that a change was occurring or leave it somewhere they could access – the expectation for employers is that the changes and their effect must be explained to employees in simple terms through training and consultation.
Takeaways
It is critical that workplace policies and procedures are implemented and updated in a transparent and consistent manner, and that meaningful records are kept throughout the process.
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