15 January 2025
5 min read
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A recent Fair Work Commission case has sent a clear message to businesses – they cannot rely on a ‘tick and flick’ strategy to implement policies regarding respectful behaviour and unlawful conduct in the workplace.
The decision reminds employers to be proactive, rather than reactive, when taking steps to prevent unlawful conduct from occurring in the workplace or in connection to work, in line with their legal obligations under the Sex Discrimination Act 1984 (Cth).
In Samad v Phosphate Resources Ltd (t/a Christmas Island Phosphates) [2024] FWC 2868 (Samad v Phosphate), a truck driver was dismissed by his employer for ‘serious misconduct’ after making inappropriate comments and sexual gestures to, and about, another employee, which then escalated into an aggressive altercation.
The driver (the applicant in this case) admitted to some of the alleged behaviours but claimed that he was unaware of the four workplace policies he was accused of breaching, namely the Code of Conduct, Standards of Behaviour Policy, the Anti-Discrimination and Harassment Procedure and the Psychosocial Safety in our Workplace Policy.
The employer argued that the driver was aware of the Code of Conduct as he had been to a ‘Toolbox Talk’ the previous year, which lasted about 30 minutes. At these meetings, copies of the presentation were available for employees to take away or read in their own time.
In reaching a conclusion, Deputy President O'Keeffe considered the driver’s age, his unblemished work record, and the limited job opportunities on Christmas Island. The Deputy President ultimately concluded that, while there was a valid reason for termination, the dismissal was nevertheless harsh and unjust because the driver lacked exposure to and understanding of the policies that he was alleged to have breached.
Crucially, the Deputy President found that the ‘Toolbox’ meeting had “all the hallmarks of a ‘tick and flick’ exercise designed to demonstrate compliance” for the following reasons:
It is clear that traditional approaches to training and educating employees about workplace policies have proven ineffective at eliminating unwanted behaviours, especially where policies are not periodically reinforced with ongoing opportunities for employees to apply their knowledge.
Gone are the days where it may have been enough for an employer to simply roll out policies and expect employees to read and sign an acknowledgement of understanding.
To discharge the positive duty, employers must take proactive steps to ensure their employees understand the standards expected of them in the workplace and the potential consequences flowing from a breach.
Education plays a fundamental role in eliminating inappropriate behaviours and unlawful conduct. Employers should therefore present training as a necessary and meaningful part of participating in the workplace, offering it regularly to build knowledge and familiarity, rather than treating it as a mere compliance requirement.
In Samad v Phosphate, President O’Keeffe recommended that training about acceptable workplace behaviours should be culturally and linguistically appropriate, interactive and deals with not just the 'what' but also the 'why'. Each time that a topic is revisited, it might involve deepening layers of complexity or different applications.
We recommend employers consider education and training about workplace policies that is:
By consistently promoting and enforcing comprehensive written policies, employers can take proactive and meaningful action to prevent inappropriate behaviour and unlawful conduct occurring in the workplace.
Employers should be aware of the recent changes to the Sex Discrimination Act 1984 (Cth), which imposes a ‘positive duty’ on employers to take reasonable and proportionate measures to eliminate, as far as possible, workplace sexual harassment, discrimination on the ground of sex, hostile workplace environments and victimisation. This sentiment has been reflected in local jurisdictions, including Queensland. Read more about what employers can’t afford to ignore.
On 10 September 2024, the Respect at Work and Other Matters Amendment Bill 2024 (Qld) was passed by the Queensland Parliament to amend the Anti-Discrimination Act 1991 (Qld). From 1 July 2025, employers will have a ‘positive duty’ to eliminate, as far as possible, discrimination on the basis of all protected attributes, as well as sexual harassment, vilification and other associated objectionable conduct. This is broader than the definition at the federal level (by way of the Sex Discrimination Act) because it extends to discrimination of all forms – not just discrimination on the grounds of sex.
Prior to these reforms, individuals had to file a complaint for unlawful conduct to be addressed. The implementation of the ‘positive duty’ shifts this burden, requiring businesses and organisations to take proactive steps to prevent unlawful conduct from occurring, regardless of whether an employee makes a report.
The Anti-Discrimination Act will align with the new provisions introduced to the Work Health and Safety Regulation 2011 (Qld), which oblige employers to proactively manage the prevention of sexual harassment, or harassment on the basis of sex or gender in the workplace. From 1 March 2025, employers will also be required to prepare a prevention plan to manage identified risks related to the health and safety of their workers.
If you need assistance with reviewing your business’ workplace policies or have any questions about this article, please get in touch with our team below.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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