Can I be dismissed for breaching company policy?

Breaching company policy can be used as a valid reason to dismiss an employee. But it’s not enough for a company policy to simply be in place. Unfair dismissal cases heard by the Fair Work Commission tell us that an employee must have been informed about the company policy. And perhaps more importantly, they must also be understandable to them.

In this article, we share two Fair Work Commission cases that show how breaching company policy doesn’t always mean you can be fairly dismissed. If you have been dismissed for breaching company policy, reading these cases will help you understand if you have reason to make an unfair dismissal claim.

What is a company policy?

A company policy is a written statement or document that outlines the expected ethical and behavioral standards for employees within a specific workplace. A well-formulated company policy sets outs out the guidelines, rules and procedures that employees must follow to meet these behavioral standards.

An employer may have company policies to regulate employee behaviour for a variety of matters. This can include company policies that cover:

• Staff dress standards.
• Customer service.
• Code of conduct.
• Out of hours conduct.
• Conflicts of interest.
• Use of company equipment.
• Workplace health and safety.
• Drugs and alcohol.
• Disciplinary actions and dismissals.
• Bullying and harassment.
• Discrimination.
• Use of the internet and social media.
• Recruitment.

Can I be fairly dismissed for breaching company policy?

Breaching company policy can be reasonable grounds for dismissal. However, the employer must have made an effort to make the company policy known to all staff. And all staff members must be able to understand the company policy.

A company policy must be clear and unambiguous so that employees know exactly what is acceptable conduct or not. A company policy must also clearly state which employees it applies to. And it must explicitly state the consequences of not complying with the company policy. Employers must also ensure that if a company policy is amended, that employees are made aware of the changes.

Manager wins unfair dismissal case because they breached incomprehensible company policies

In the recent unfair dismissal case Eptesam Al Bankani v Western Sydney Migrant Resource Centre Ltd [2023], the importance of company policies being understandable was highlighted. The case involved Eptesam Al Bankani, a manager for the not-for-profit Western Sydney Migrant Resource Centre.

Ms Bankani was required to be on call after 5 pm to help the Centre’s clients. She was provided with an on-call phone just for this purpose. Over the Christmas period in 2021, Ms Bankani took leave and therefore gave her on-call phone to a colleague. But before she handed it over, she deleted its contents.

Employee is dismissed for serious misconduct

After returning from leave, Ms Bankani was informed that she was placed on suspension for deleting data from the Centre’s phone. This was because the Centre’s company policies prohibit the destruction of client records. Also, the removal of data without authorization.

Ms Bankani was then provided with a show cause letter, which asked to provide a written response to the allegation. A few weeks later, the Centre completed its workplace investigation into the allegation. And as a result, it summarily dismissed Ms Bankani for serious misconduct. She subsequently made an unfair dismissal claim with the Fair Work Commission.

Fair Work Commission finds valid reason for dismissal

At her unfair dismissal hearing, Ms Bankani argued that she had not violated the Centre’s company policies. This was because her on-call phone did not contain any client records. She said that she used another work mobile to talk to clients, even though she was required to use the on-call phone.

The Fair Work Commission found this reasoning to be “rational and plausible.” However, it also found that deleting the contents of the work-issued phone provided the Centre with a valid reason for dismissal. This was because it could have compromised the Centre’s record keeping systems. And also, its contractual obligations to maintain records.

Fair Work Commission finds fault with company policy

But despite finding a valid reason for dismissal, the Fair Work Commission took issue with the Centre’s company policies. Specifically, the policy for the IT procedures that employees are to follow. The Fair Work Commission found that:

• The company policy that Ms Bankani breached featured wording that is “legalistic” and “complex.” And that the procedure employees were expected to follow around deleting data on mobile phones “is far from clear or obvious.”
  
• It was doubtful Ms Bankani would have comprehended the company policy given its wording and that she was a non-native English speaker.
  
• The company policy didn’t adequately outline that deleting data from a company mobile phone amounted to serious misconduct. It said that the company policy should have “unambiguously spelt out the requirements for retaining and preserving information held on mobile phones.” And also, “the very serious consequences for not complying with those requirements.”
  
• There was insufficient evidence that the Centre made sure all staff read and comprehended the company policy.
  
• The company policy “had no connection at all” with the Centre’s daily practices regarding phones. A former supervisor for the Centre gave evidence that data was routinely deleted from mobile phones when employees left the organisation.
  
• The Centre had also failed to keep information stored on mobile phones. And that there was a lack of documented procedure compelling employees to back up phone data.

Given these shortcomings of the Centre’s company policy, the Fair Work Commission stated that the Centre “simply made a bad judgment call to dismiss [Ms Bankani] so swiftly.” It therefore ruled that her dismissal had been harsh, unjust and unreasonable. The Fair Work Commission ordered the Centre to reinstate Ms Bankani. However, it also ordered that the amount owed to her in lost remuneration be reduced by 25% due to her misconduct.

Polices cannot remain tucked away and confidential

Bus driver wins unfair dismissal case despite breaching company policy

Another example of an employee being dismissed for breaching unclear company policy is Con Perry v ComfortDelGro Cabcharge Pty Ltd [2016]. It involved bus driver Con Perry, who was employed by Hillsbus (owned by ComfortDelGro Cabcharge) in Sydney.

Mr Perry had been employed at Hillsbus for about three years when a passenger made a complaint that he had been using his mobile phone while driving. The passenger had noticed that Mr Perry had touched his phone twice, including tilting it from the windowsill so he could see the screen. Mr Perry’s actions breached Hillsbus’ company policy regarding driver safety. This states that drivers are prohibited from not only using a hand-held mobile phone. But also, hands free devices if it causes the driver to lose control of the bus.

In addition, Mr Perry’s actions violated regulation 300 of the NSW Road Rules 2014. It states that a driver can’t use a mobile phone while they are driving or parked. That is, unless it is secured in a mounting device. When he started his role at Hillsbus, Mr Perry had been provided with a driver’s guide that included this company policy around mobile phones. The company policy stated that a breach could lead to a summary dismissal for serious misconduct.

Employee is suspended then dismissed for serious misconduct

For breaching the company policy, Mr Perry was placed on suspension while Hillsbus conducted a workplace investigation. In his written response to the breach, Mr Perry outlined that he did not use the phone to make a call. In fact, his phone did not even have a SIM card. He stated that he was simply using his phone to play music. Despite this explanation, Mr Perry was summarily dismissed by Hillsbus for breaching the company policy. He subsequently made an unfair dismissal claim with the Fair Work Commission.

Fair Work Commission rules on the unfair dismissal case

In his evidence provided to the Fair Work Commission, Mr Perry claimed that he had bought a new mobile phone. And that he had decided to use his old phone purely as a music player. The Fair Work Commission accepted this claim. It noted that Mr Perry’s new mobile phone was in his bag at the time he had touched his old phone while driving. And that his old phone had been deactivated and was unable to make calls or texts.

However, the Fair Work Commission found that Mr Perry’s old mobile phone, despite being used as a music player, was still a mobile phone under NSW driving regulations. This meant that Mr Perry had breached the regulations and the Hillsbus company policy. The Fair Work Commission therefore ruled that there was a valid reason to dismiss Mr Perry. But the Fair Work Commission also found that Mr Perry had merely “glanced at and tapped” his phone in order to play music. It said that this presented no more danger than having looked at the dashboard of the bus.

The Fair Work Commission also took into account that:

• Mr Perry sincerely believed that he had converted his old mobile phone into a music player. And therefore, that he believed it wasn’t covered by the NSW regulations or Hillsbus company policy.
  
• Hillsbus had inadequately explained the application of its company policy with regard to using music players while driving.
  
• Hillsbus company policy didn’t clearly outline what kinds of electronic devices drivers are prohibited from using while driving.
  
• According to Hillsbus company policy, there wouldn’t have been a valid reason for dismissal if Mr Perry had used a different, but physically indistinguishable device, such as an MP3 player.
  
• Hillsbus had delayed the investigation into the customer complaint against Mr Perry. That was, despite the reason for his dismissal being predicated upon his actions being a risk to public safety.

Considering these factors, the Fair Work Commission ruled that Mr Perry’s dismissal had been harsh. It therefore ordered Hillsbus to reinstate him. It also ordered the company to pay Mr Perry compensation for income lost since his dismissal.

Conclusion to: Can I be dismissed for breaching company policy?

As you read in this article, dismissing an employee for breaching company policy isn’t always fair in the eyes of the Fair Work Commission. That is, even if there is a valid reason for dismissal. This is particularly the case if the company policy is not clear and unambiguous. And if it hasn’t been adequately communicated to employees via an induction process or training. If you believe that you have been unfairly dismissed, A Whole New Approach can provide assistance. (we are not lawyers). We can help you file an unfair dismissal claim with the Fair Work Commission. It’s important to act quickly as you have only 21 days after your dismissal to file a claim.

As Australia’s top workplace mediators, we are committed to helping employees attain a just outcome. With a successful track record of managing over 16,000 cases, our expert workplace professionals will ensure that your unfair dismissal claim is handled effectively. We are dedicated to safeguarding your employment rights and offer a no-risk guarantee. You only pay if we win your case. Take advantage of our free initial consultation to understand your rights and explore the options available to you. You don’t have to face the consequences of unfair dismissal alone.

Contact us at 1800 333 666 for a private discussion and let us help you fight for what’s right.

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