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Friday Workplace Briefing

Zero-Tolerance Policies

Common mistakes that employers make when enforcing a zero-tolerance policy, and the risks around employees being reinstated if the dismissal was unfair

This week Andrew and Mat discussed the practical implications of enforcing zero-tolerance policies in the workplace.

Learn how to avoid some of the common mistakes that employers make when a policy has been breached and the risks around those employees being reinstated if the dismissal was unfair.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Episode Transcript

Andrew Douglas: Now let’s get into the heart of it.

Mathew Reiman: Yeah, We got a lot news here, really.

Andrew Douglas: A lot of news.

Mathew Reiman: We’re only getting started.

Andrew Douglas: But we’ve only got six minutes left.

Mathew Reiman: Oh, there you go.

Andrew Douglas: Yeah, so, so.

Andrew Douglas: And luckily we are because we’re talking about the risk around reinstatement. As Matt said, the privacy of mitigation, that is the first thing a court looks to do, is to see where they can reinstate someone who’s been unfairly–

Mathew Reiman: Yeah, it’s clear, it’s in the legislation. Unfair dismissal.

Andrew Douglas: And what we’ve seen recently is a series of cases about reinstatement where people have just been stupid.

Mathew Reiman: Yeah, I think that’s right. And it ties into the zero tolerance because what we’re really seeing in these decisions is it’s employers making a very classic mistake but we’re having much more significant consequences from this more recent trend, which is, look the error is, don’t just blindly apply a set of rules without taking into consideration the specific circumstances and context of the person to whom you’re applying them. So that zero tolerance approach having whatever it might be. We don’t tolerate violence, we don’t tolerate, you know. Everyone has to be vaccinated, whatever it might be, applying those blindly and then ignoring, and that’s something that’s consistent between these decisions we’re seeing, basically ignoring the explanation given to you by the person to whom you try to apply that zero tolerance approach will entirely undermine the validity of your reason. And importantly will wound the person that you’ve terminated, but in a way where you cannot demonstrate that what they have done has actually broken the trust and competence.

Andrew Douglas: And here’s the, here’s the key concept. You don’t have to reinstate someone where you have evidence which is both just and reasonable. In other words, it’s, you are right.

Mathew Reiman: Yep.

Andrew Douglas: And the gravity of the situation is such.

Mathew Reiman: Yep.

Andrew Douglas: That you can never put the person back in the workplace.

Mathew Reiman: That’s right. That’s right.

Andrew Douglas: Because you can never trust them not to do it again or create the same risk.

Mathew Reiman: Yep.

Andrew Douglas: So that’s, that’s how you stop re-instatement. Let me just, I’m going to, I’ll run through a couple of cases then I’ll, I’ll let Matt go crazy.

Mathew Reiman: Yeah sure.

Andrew Douglas: So we’ve got Brass and Yarra Trams, whereas a guy who jokingly put his knee up– He touched one guy once, got a bit of a warning, didn’t touch another guy and no one complained, okay? But the tram people got pretty upset about it. So they sacked him.

Mathew Reiman: Yeah.

Andrew Douglas: But nobody complained.

Mathew Reiman: No.

Andrew Douglas: And so what the court said is actually no one’s complained.

Mathew Reiman: Yeah.

Andrew Douglas: You were saying it’s very serious but no one’s complained.

Mathew Reiman: That’s right.

Andrew Douglas: So there’s no risk putting the person back. Dumb. Okay. That’s, that’s number one. Dumb, Done. Okay? Then we’ve got Milka Bateson and the State of Victoria Police. That’s where the police alleged misconduct by a person misusing police assets and breaching police rules. And they were wrong. It was actually a complainant, a deny-back complaint. He was having a sexual relationship with her husband. She found out about it

Mathew Reiman: He was also a police officer.

Andrew Douglas: Yeah, bugger and a police officer.

Mathew Reiman: Yeah.

Andrew Douglas: And a bed partner. And she went and rang them.

Mathew Reiman: Yeah.

Andrew Douglas: And it wasn’t to do anything like give her a heads up or find out. It was– She’s out distressed as a wife.

Mathew Reiman: Yeah. Was upset.

Andrew Douglas: And so the court looked and said, well, everything you’ve said is not true, so I’m going to reinstate ’cause I’m not going to let you treat her like this.

Mathew Reiman: Yeah.

Andrew Douglas: It’s a very powerful judgement criticising the police actually.

Mathew Reiman: Yeah. It was actually.

Andrew Douglas: So that was a fun one.

Mathew Reiman: Yeah.

Andrew Douglas: Logsdon and Surfside Buslines Then there’s Logsdon and Surfside Buslines.

Mathew Reiman: Yeah. Yeah.

Andrew Douglas: Which is perhaps the worst decision I’ve read in about four years.

Mathew Reiman: Yeah. Yeah.

Andrew Douglas: I just– I want to get–

Mathew Reiman: Oh no, I’ll let you do the facts on this one Andrew. I bet you were passionate about-

Andrew Douglas: The Queensland mandate, you had to wear a mask.

Mathew Reiman: On the bus, on public transport.

Andrew Douglas: The public– The Surfside said to everybody to their employees, look, don’t you try and enforce this. This is a responsibility of the person. You don’t want to be involved in enforcement. Well, that’s called aiding and abetting a crime. Anyway, they said that. So let’s talk about the law is she says someone gets on a bus. They won’t wear a mask. She tells them. They abuse her. She stops the bus and ask them to get off.

Mathew Reiman: Yeah.

Andrew Douglas: The decision doesn’t deal with actually what the law is which is the law is she was quite right to stop the bus

Mathew Reiman: Yeah.

Andrew Douglas: And tell the person to get off because she was protecting both safety and enforcing a mandate.

Mathew Reiman: Yeah.

Andrew Douglas: Their direction not to do it was an unlawful direction. So therefore they could never win this case if it was actually argued properly or heard properly.

Mathew Reiman: Yeah. Yeah.

Andrew Douglas: Because it was an unlawful, not a reasonable direction therefore they could never terminate.

Mathew Reiman: That’s right.

Andrew Douglas: And she was always doing the lawful thing as required by law.

Mathew Reiman: Yeah. Yeah.

Andrew Douglas: Unfortunately the court didn’t address those obviously.

Mathew Reiman: No, no, not at all. Didn’t actually get down into that and look thankfully–

Andrew Douglas: Legal basis.

Mathew Reiman: No, I mean, I mean, it would’ve been again– And, and look– One of the consistent things through a lot of these cases is that there’s not presence. They’re unrepresented applicants. Of course, they’re not running it around the lawful and reasonable direction aspect. But that would’ve been the key element of this case. I mean, the commissioner got there in a different way anyway, which was to say that well actually irrespective of this whole thing about the masks part and whether a direction about it was lawful or not, the swearing that the passenger did towards the bus driver was sufficient to justify her actions to stop the bus.

Andrew Douglas: Can I just say, can anyone smell law in that? Okay. Look, the next one is reinstatement.

Mathew Reiman: Yeah. So we had an interesting one in the Antivax context. So what we had really–

Andrew Douglas: You’re not allowed to call them cookies, she told me that.

Mathew Reiman: No. It’s called cookers, not cookies. Sorry.

Andrew Douglas: Sorry. I only learned that today. That’s a social origin risk.

Mathew Reiman: I mean, I think you should.

Andrew Douglas: No, no.

Mathew Reiman: Either way, so in this one it was very interesting because it had an employer, he was a Northern Territory firefighter on leave before the mandate came into place. Mandate comes into place while they’re on leave, on a really extended period of leave. Responds to the email that they get saying you got to send us the vax certificate. And he says, well, look, I– Yeah, doesn’t actually say in the email that he is or isn’t vaccinated. He said, yeah, I’m, you know I’m happy to confirm my vaccination status but I’m on, I’m on leave. Are you directing me back to work or what’s the situation here? And again, zero tolerance sort of approach here. They don’t actually deal with what he says at all. They just go, you haven’t provided it in time. They terminate his employment. So by the time it goes through the commission when it comes to the question of reinstatement, one, the commission says, well, you know, this wasn’t actually a valid reason. You know, I mean, yes, you– The mandate was enforced, but you didn’t actually ask this guy to come back to the workplace. And two, you just entirely ignored what he had to say and now the mandate’s not in place. So I’ll reinstate it and he was vaccinated anyway.

Andrew Douglas: There you go. So those four cases we gave you show that people had do stupid things

Mathew Reiman: Yep.

Andrew Douglas: Failed to get it right.

Mathew Reiman: Yep.

Andrew Douglas: And then continued to prosecute a dumb case

Mathew Reiman: That’s right, yeah.

Andrew Douglas: -with reinstatement.

Mathew Reiman: Yeah.

Andrew Douglas: Does that help you? Cause that’s how it works.

Mathew Reiman: Yeah. I think that’s the key part. Yeah. And look, it ties back into the zero tolerance because if, if you, if you’re doing it in a dumb way and you’re doing it a dumb way consistently.

Andrew Douglas: And you get it wrong. And you get it wrong,

Mathew Reiman: You’re going to keep getting it wrong.

Andrew Douglas: So let’s just tidy up. You know, zero tolerance can work where it’s what’s called a golden rule.

Mathew Reiman: That’s right. Yeah.

Andrew Douglas: So that gets over harshness. It gets overruled.

Mathew Reiman: Yes.

Andrew Douglas: If there is such a profound risk in a business and you say, look, this is a golden rule, you will not work unharnessed on heights.

Mathew Reiman: That’s right.

Andrew Douglas: Golden rule. And so then you go and train everybody and you explain why that’s the case, you explain the level of risk. And on a regular basis you re-communicate it.

Mathew Reiman: Yep.

Andrew Douglas: And you deal with it aggressively on every occasion that comes up, irrespective of who the person is, then you’re not going to have this fight because it is a golden rule built on rock.

Mathew Reiman: Yeah.

Andrew Douglas: Not sand.

Andrew Douglas: And I think– Using your rock and sand example that’s why in the Logsdon and Surfside bus company one, it was literally written in whiteboard marker on a whiteboard to say don’t enforce the mask mandate. So that really great example in what’s the difference in golden rule.

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