In a recent decision of Al Bankani v Western Sydney Migrant Resource Centre Ltd [2023] FWC 557, the Fair Work Commission (FWC) found that the dismissal of Ms Eptesam Al Bankani (Ms Al Bankani) was harsh, unjust and unreasonable. This determination arose from the employer’s overly complex and difficult-to-understand workplace policy.
Background
Western Sydney Migrant Resources Centre Ltd (WSMRC) is a non-for-profit company providing services to the Western Sydney community, including settlement services and programs, visa crisis management, emergency relief, youth and family support, and case management services.
Ms Al Bankani commenced employment with WSMRC in 2016 on a part time basis and at the time of her dismissal was acting in the position of Specialist Intervention Manager. In this position, Ms Al Bankani was required to hold a company supplied mobile phone for the provision of services to WSMRC clients outside of office hours.
Over Christmas 2021, Ms Al Bankani took a period of leave and was required to hand over the mobile phone to a co-worker to take responsibility for any out of office calls. Ms Al Bankani deleted all of the information and data on the mobile phone prior to handing it over to the co-worker which led to her dismissal.
WSMRC argued that:
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- the contract between WSMRC and one of its clients required WSMRC to maintain client records for at least seven years and prohibited the destruction or disposal of such records (Contract); and
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- the deletion of the records was in breach of its Procedure Manual.
Ms Al Bankani’s evidence was that she:
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- had never seen the Contract;
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- did not delete anything that could be understood to be a client record; and
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- did not breach the Procedure Manual (workplace policy).
Despite WSMRC not being able to establish that any client records were actually deleted, they dismissed Ms Al Bankani for serious misconduct.
The FWC Decision
The FWC found that Ms Al Bankani’s dismissal was harsh, unjust and unreasonable despite there being a valid reason for her dismissal. In reaching this decision, the FWC made the following comments:
- The terms of the WSMRC Procedure Manual (workplace policy) are long, complex, legalistic and did not fairly and clearly put Ms Al Bankani on notice of its requirements. The FWC noted that the terminology used in the Procedure Manual was more commonly found in a commercial or government contract rather than in a document used by workers in a migrant assistance agency;
- There is little evidence of WSMRC ensuring that its employees read and understood the Procedure Manual (workplace policy);
- WSMRC’s procedures regarding mobile phone and IT were haphazard. The written policy had no connection at all with the WSMRC’s everyday practices regarding phones;
- Ms Al Bankani’s explanation to some of the matters put to her were rational and plausible;
- Ms Al Bankani’s conduct was not serious in the circumstances because there was a very low risk or likelihood that the mobile phone contained client records; and
- WSMRC had access to materials that would have proved (or disproved) Ms Al Bankani’s explanation but did not investigate those materials.
The FWC was satisfied that the dismissal of Ms Al Bankani was harsh, unjust and unreasonable and made an order that Ms Al Bankani be reinstated to her former position with WSMRC, with continuity of employment, and restored her pay, albeit with a 25% reduction due to her conduct prior to dismissal.
Key takeaways
It is important for employers to ensure that their workplace policy is clear, easily accessible and reasonable in their terms. Policies and procedures that are well-written can help employers assess employee performance, establish accountability and manage staff more efficiently by clearly defining acceptable and unacceptable behaviour in the workplace.
For more information on workplace policy and procedures, read the NSW Government Workplace Policies and Procedures Checklist and the Small business and the Fair Work Act.
National Employment & Labour Lawyers have a dedicated team who can assist you with your workplace policy questions. We offer a free and confidential initial consultation, where we can discuss your situation and provide you with tailored advice. Get in touch with us today!
Disclaimer: The information contained in this article is of a general nature and is not intended to be relied upon as, nor to be a substitute for, specific legal or professional advice.
