What obligations do employers have communicating important policies?

Key learnings for employers

The obligation is clearly on the employer to ensure employees are fully informed of the contents of any new policy or policy change.
The DP recommends focussed training sessions with competency checks. Toolbox meetings are not sufficient.
Unless written into their employment contract or an obligation in an enterprise agreement employees are not obliged to open and read work emails sent to their personal email address.
The more important the policy and the potential impact on employees if not followed the greater the communication obligation on employers.

Deputy President Wright, of the Fair Work Commission, recently issued a decision that clearly places the obligation on employers to ensure their employees are fully aware of the contents of important policies.

The matter involved the termination of an employee (Mr Hancock) for breaching the company’s (Sydney International Container Terminals) Drug and Alcohol Policy.

Following a minor incident at the site several hours into the night shift, a number of employees including Mr Hancock, were tested for alcohol and drugs. Mr Hancock’s BAC came in at 0.017%. When he was tested he stated to the tester that he was relieved as he was below the company’s Drug and Alcohol Policy’s cut off level of 0.02%.

However, the company had changed the Drugs and Alcohol Policy to a BAC of 0.0% across the worksite.

Mr Hancock was therefore suspended and, after an investigation, was terminated for serious misconduct for breaching the policy on 2 May 2024. He challenged his termination as an unfair dismissal application which then went to full hearing.

Mr Hancock was 55 years old and had worked as a crane operator since 2000 commencing with his current employer in 2013. Prior to starting on the night shift at 10pm he had a glass of wine offered to him by his neighbour about an hour before proceeding to work. He believed that the one glass would still keep him below what he understood to be the 0.02% BAC cut off.

Mr Hancock was adamant he was not aware the company had changed the BAC to 0.0% believing it was still at 0.02%.

Mr Hancock’s legal representative called a number of fellow employee witnesses who all stated they were unaware of the company changing the BAC to 0.0% and that they could not recall being informed of the changes. Some indicated the first time they became aware of the BAC change was when Mr Hancock was terminated.

Implementing the Changed BAC

During the proceedings the company provided the following information on how the change to the policy had been introduced:

The Drugs and Alcohol Policy had been amended from 0.02% BAC down to 0.0% BAC effective from 7 March 2023.
Prior to this date the company had sent a text message to all employees stating, “Dear Employee, please note that a copy of the HSEQ 3.19 Drug & Alcohol Policy has been emailed to you for your reference”
The company had emailed a copy of the updated policy to all employees shortly thereafter. Blue collar staff who did not have a company email address received a copy of the policy via their personal email address. The email subject line stated ‘HSEQ3.19 Drug & Alcohol Policy’ Further down in the cover email (with the policy attached) it stated the new BAC limit was now zero.
Toolbox meetings were held on site on 17 and 19 March where employees were given a brief notification that the Alcohol and Drug Policy BAC level had changed to 0.0%.
Copies of the updated policy were displayed on various noticeboards on the site, in the amenities room and printed copies were available on the desk in the safety office for employees to take. Paper copies of the updated policy had not been given to individual employees. The only wording change to the updated displayed Alcohol and Drugs Policy was the change from BAC 0.02% to 0.0%

During cross examination the responsible manager admitted he did not know whether any particular employee, who had received the company email to their personal email account, had opened it or understood its contents.

The company Alcohol and Drugs Policy allowed for a ‘three strikes and you are out’ approach. The company stated that this breach was the third strike for Mr Hancock and that termination based on the breach was therefore appropriate.

The second breach on the file related to a warning issued to Mr Hancock that he refused a BAC test after an incident a number of years earlier. Mr Hancock stated in the hearing that he had originally challenged that warning as he wasn’t aware of any request made to him to undergo a test. He stated that the warning (for not taking the test) was issued some time after the request that he had not received.

Commission Guidance On Implementing Policies

The Deputy President made the following findings which are useful guidance to employers in how to introduce and update an important policy – especially where a breach may lead to an employee’s termination.

The Drugs and Alcohol Policy was an essential and legitimate strategy for managing this risk in potentially dangerous work environment. The requirements of employees of the policy were lawful and reasonable.
The text message and subject line in the email sent to employees did not give the employees information that the policy had changed or about the new BA 0.0% level being introduced through the policy change.
The email was not an appropriate way to communicate such a significant change to the Drugs and Alcohol Policy to employees. It is not reasonable to assume an employee would have opened and read (and understood) a work email on their personal email account.
There was no requirement (unless it was in their EA or employment contract) for an employee to open and read a work email sent to their personal email (or personal mobile number). The DP recognised that this was a reasonable expectation only where employees had a work email address. Additional to this was that most employees did not have access to a computer at work.
It was reasonable to raise the changes to the Drugs and Alcohol Policy at the toolbox talks but that this was very brief and inadequate to inform employees of a such a significant change. The toolbox talks were several minutes and usually covered several topics.

The Commission provided the view that even though it was a small change in wording to the Drugs and Alcohol Policy document, its impact on safety and the potentially big impact on an employee if breached (possible termination), made it significant which required a more focussed approach to communication to employees. This required a dedicated training/briefing session which allowed important information to be better retained by them. The DP recommended such sessions should also have included important information on how long it would take for an employee’s BAC to return to zero after consuming alcohol. Such training should also have tested the knowledge of the employees individually in writing and should have been required to acknowledge in writing that they attended and understood the requirements of the policy.

The company admitted there was significant downtime at the site (while waiting for ship to berth etc) which would have allowed them to run formal training in small groups on the Policy changes.

The DP found the noticeboard posters indicating the new BAC level would have been useful in addition to training sessions but also noted that several old posters remained displayed well after Mr Hancock’s termination where the BAC level was incorrectly stated at 0.02%.

In summary the Deputy President concluded the steps taken by the employer to communicate such an important policy change “were inadequate and not appropriate for employees who operate machinery and do not regularly use computers at work”.

The DP accepted Mr Hancock’s assertion that he was not aware of the change.

The DP noted that given the safety importance the employer placed on the Drugs and Alcohol Policy it invested little time communicating the changes to employees.

Reinstatement and Payment of Lost Remuneration (May 2024 to 20 February 2025).

After looking at all the factors she concluded the decision to terminate was harsh and unreasonable. Key additional factors in this decision included Mr Hancock’s age and length of service. She then made Orders for the reinstatement of Mr Hancock in his prior role and the payment of lost remuneration for the intervening period.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au