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Tribunal Decision Sends Clear Message: Your Clients Need Workplace Policies

A recent decision handed down by the Fair Work Commission (previously known as Fair Work Australia) reinforces the vital role that employment policies play in the modern Australian workplace.

On May 2012, Barwon Health dismissed a long-serving Specialist in Anaesthesia, Dr Mark Colson, on the basis of the employee's alleged 'serious misconduct'. According to Barwon Heath, which manages the Geelong Hospital in Victoria, Dr Colson had:

a) deliberately submitted claims for operating-theatre services in breach of the health service's guidelines and directives, and

b) circulated a 'deliberately offensive' letter about the health service's management team to every employee working in Geelong Hospital's Anaesthesia Department

In his decision, Commissioner Roe of the Fair Work Commission found that Barwon Health was wrong to dismiss Dr Colson and ruled that Barwon Health must reinstate Dr Colson to his former position.

Importantly, Commissioner Roe accepted that Dr Colson's conduct did indeed amount to 'misconduct', but that Barwon Health couldn't justify the termination because there were no policies or procedures in place that made it clear that his conduct could result in the termination of his employment.

In relation to the theatre services claims that Dr Colson had submitted, Commissioner Roe found that the billing guidelines put in place by Barwon Health were vague enough to allow Dr Colson to submit the claims in the way that he had.  Had these billing guidelines – or policies – been properly drafted, we can assume that the termination would have been upheld by the Commission.

In relation to the 'deliberately offensive' letter that Dr Colson distributed across the Department, the Commissioner found that Barwon Health hadn't done enough to make it clear to the Doctor that such aggressive and offensive correspondence was unacceptable and could result in disciplinary action, including the possible termination of his employment without notice. Again, we can safely assume that if clear policies about acceptable forms of communication had been implemented by Barwon Health, Dr Colson's dismissal would have been valid.

It's worth remembering that your client's employees enjoy a huge range of rights and entitlements that are granted by the Fair Work Act 2009 (including the 10 National Employment Standards), Modern Awards, the Paid Parental Leave Act 2010 and state and commonwealth discrimination laws. In contract, employers have few rights or entitlements and employees have even fewer obligations.

By far the easiest and most cost-effective way for your clients to restore the balance between them and their employees is by rolling out well-drafted workplace policies that impose clear rules, proper procedures and important obligations upon employees.

The Barwon Health case should serve as a clear and timely reminder to your clients that good, clear and robust workplace policies are absolutely essential in every Australian business. 

David Bates BA(Govt) LL.B(Hons)

Managing Director

Workforce Guardian

Disclaimer: This article is intended to provide commentary and general information only. It should not be relied upon as legal advice. Formal legal advice may be necessary in a particular transaction or on matters of interest arising from this article. Workforce Guardian Pty Ltd is not responsible for the results of any actions taken on the basis of information in this article, nor for any error or omission contained within this article.