Many people will say that common sense is not so common, but how important is it to keep your job? Employers do expect employees to have many inherent qualities. Including common sense, independence, and initiative. The issue is that these qualities are different from regular workplace skills.
Such as how to write an email, to be professional, or brew a cup of coffee. An employer cannot necessarily teach common sense and how to have a good work ethic. These qualities come from the employee’s experience and personal qualities. Employees may become confused when there is an issue that is not in the workplace policy but an employee is told “it’s common sense to know what to do and not to do in the workplace”. And depending on the facts, either the employee or employer may be right.
An employee does need to rely on their common sense. For example, to know that breaking the law can place an employee in trouble at work. A transport company does not necessarily have to explicitly write “not to speed” or “not to drink drive” for their truck drivers to know that they will face penalties if they drink drive.
However, in the same vein, a company cannot automatically expect all employees to know how the company will behave in the event of a ‘common sense’ situation. That is when a thorough workplace policy is important. Relating to the above example, a truck driver may know not to drink drive.
Warning or immediate termination
However, they will not inherently know what the workplace consequences would entertain. Whether it is the difference between a warning or immediate termination. That would be specified in a policy or guideline.
Additionally, the company may have mitigating factors that they highly value. For example, a company may never terminate a driver for drink driving as long as the driver informed the company within 24 hours. Because companies can behave and value different things an up to date policy is necessary to convey that to staff.
Ultimately when deciding on which party prevails (whether the employee should rely on common sense or an employer’s policy and guidelines) there are a few necessary factors. The specific facts of the issue, whether another person was hurt or injured due to the employees actions, and the general atmosphere of the company.
Porn is okay at work?
Per the unfair dismissal case of Allan Croft v Smarter Insurance Brokers Pty Ltd (2016) FWC 6859, when determining whether a dismissal was unfair, it came down to the adherence to workplace policy. Mr Croft was working for a small insurance broker in New South Wales.
During his employment it was found that he had downloaded hard core p*rn onto his work laptop and phone. Including copies of his own sexual acts. Furthermore, Mr Croft had already displeased his superiors by taking extended lunch breaks and being late for work. Most employees would have the common sense not to use work equipment for acts of personal pleasure. As the computer and phone were the company’s property they have a right to know what is on the equipment and what it is being used for.
When the insurance broker was informed of the explicit material they had decided to terminate Mr Croft’s employment on the spot without providing him a reason as to why. Just that the company no longer needed his service. On the reliance of poor legal advice, the company was misinformed that if they paid their employee their entitled notice in lieu then they did not have to provide a fair dismissal. Including informing the employee why they are dismissed, allowing them a support person, or provide an opportunity to respond.
Employee gets compensation
Upon being dismissed, Mr Croft filed a claim with the Fair Work Commission. Who agreed that Mr Croft was unfairly dismissed and awarded the employee $10,000 as financial compensation. The Commissioner explained that in most cases downloading hard core explicit material would allow the grounds for reprimand or termination. However, the company had failed in some key responsibilities that had led to the Commissioner supporting Mr Croft.
Did not communicate policies or guidelines
Firstly, the employer did not communicate any policies or guidelines that work equipment was confirmed to workplace activities. Secondly, there was some evidence to hint that Directors of the company were also downloading and viewing their own explicit material. Finally, there were only three occasions where Mr Croft downloaded the explicit material.
On this occasion, there was an inherent need for thorough company policy. Companies do not need to explicitly state and outlaw all and every act that employees are prohibited to do. However, the above company should have specified in any capacity that work equipment was to be used solely for work related activities. Then it is more likely that Mr Croft never would have tried to download the explicit content, nor would his claim to Fair Work be as strong.
Procedural fairness overrides the need for common sense or policy
In the unfair dismissal case of Scott Matthew Ashburner v St Marys Rugby League Club Ltd [2024] FWC 246, it was found that there was not a requirement of workplace policy. However, a greater reliance on following through with fair termination practices.
Mr Ashburner was a bar attendant at St Mary’s Rugby League Club. In 2023, the employer had received multiple complaints about Mr Ashburner being rude and inappropriate to other staff members. This includes phrases such as “get the f*ck out of the way” and “piss off”. Mr Ashburner did not receive a formal warning, however his behaviour was discussed with him.
During his employment, Mr Ashburner had a friendship with another female colleague that did deteriorate after a bad incident. They would have frequent arguments and Mr Ashburner complained that the female colleague was spreading “false and degrading sexualised rumours” about him. After some time, Mr Ashburner told a different female staff member “you’re acting like [another female colleague] why don’t you go get molested like her too?”.
For most employees it is common sense not to be rude or make derogatory comments about other staff members, customers, or any stakeholders. However, most companies will have policies regarding workplace behaviour and consequences if an employee is inappropriate. In the case where there is no policy then common sense should be relied upon to stay respectful to everyone.
Back dated dismissal letter
Mr Ashburner was given a collate letter stating all the issues and things said by Mr Ashburner. A second meeting was scheduled, presumably to discuss the allegations and conduct a thorough investigation. However, instead Mr Ashburner was terminated with a backdated termination letter. Supporting that the employer was alway going to dismiss Mr Ahburner and did not have the intention to conduct a thorough investigation.
Mr Ashburner was terminated due to “ongoing workplace conflict and breaching [their] Sexual Harassment Policy & Bullying and Harassment Policy”. The company was genuinely under the impression that they had enough evidence and valid reason to dismiss Mr Ashnruner. Mr Ashburner had taken the company to the Fair Work Commission to claim that he was unfairly dismissed.
Deputy President Grayson agreed with the company that Mr Ashburner’s behaviour did constitute a valid reason for his dismissal. However, the company did not conduct a thorough enough investigation to constitute a fair dismissal. Which resulted in the dismissal being “not been transparent or consistent” to Mr Ashburner.
The dismissal process was flawed
The company agreed that they had failed in the responsibility to provide a fair dismissal. They did not allow Mr Ashburner to respond to the allegations, nor provide any concise allegations to him, he was not provided with any supporting evidence to his dismissal, and more that was not fair.
Despite Deputy President Grayson supporting Mr Ashburner, he tried to argue that the employer did not provide specific training on their sexual harassment or bullying policies. Nor ensure that he had read or understood them. In which Deputy President Grayson denounced that policies are not required in order to know not to sexually harass others. I
Common sence not to hurt others
In this case, common sense would prevail. Particularly as this related to serious conduct where other people were hurt and affected. It is common sense to know not to harm others. To rely on the fact that Mr Ashburner required a written policy to know not to harass others was an insufficient argument.
This case was scheduled for a remedy hearing for a later date. With the key points of the case highlighting that in matters of serious misconduct there does not always need to be written policy to know that something is wrong to do. Particularly in cases where third parties are hurt and affected. Employees should rely on their common sense to know not to disrespect others regardless of the situation.
There was greater emphasis that companies must complete thorough and fair investigations and subsequent dismissals in order to avoid facing serious issues. If that had occurred in this case then there would have been no further discussions and the termination would have continued as normal.
A common issue is whether employees are allowed to say and do whatever they want outside of work and be sure that it will not affect their employment. Particularly surrounding what is said and done around social media. This is another area that is completely dependent on the facts of the issue.
However, the unfair dismissal case of O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311, highlights that common sense can prevail even when there is no explicit social media policy.
In this case, Mr O’Keefe made a post on his social media stating “Damian O’Keefe wonders how the f*ck work could be so f*cking useless and mess up my pay again. C*nts are going down tomorrow“. The employee did have privacy settings on his social media and did not name any employees or the company directly. However, he had many of his coworkers as friends on his social media as well. Which resulted in the person who he is referring to in his post seeing the message, as well as his superiors.
As a result the employee was sacked due to his social media post. When Mr O’Keefe took his employer to Fair Work, Deputy President Swan had supported the company’s decision to terminate the employee. Even without a social media or insults policy, the company did have the grounds to terminate Mr O’Keefe as his message was threatening.
Deputy President Swan upheld that “common sense dictates a basic standard of appropriate workplace conduct”. Therefore, it was not necessary for the company to explicitly state the prohibition of insulting conduct or poor social media decisions. Employees should automatically assume and uphold respect for others.
Conclusion Should employees be dismissed for lack of common sense?
The need for common sense at work will arise in a variety of ways. While companies do need thorough and easily accessible policies, this is not always a defence if an employee is doing something they should not. Policies are not made to specify the prohibition of every and all actions. They do not perform in the same way legislation does. They are to guide employees throughout their work, to uphold specific company values, and ensure the company is upholding their legal duties.
In cases of “no harm no foul” in the sense that there are no parties harmed or affected by the employees conduct, there may be more leeway that certain policies should be enforced. Particularly if it’s the case of an employer’s discretion and personal feelings on the matter.
However, if there are issues involving the harming or upsetting of others that include threatening, harassing, or disrespectful behaviour then common sense is required. Especially when there is already legislation outlawing that type of behaviour. Whether drink driving, sexual harassment, or theft. No workplace policy can supersede legislation, therefore it should always be assumed illegal behaviour will be punished.
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