Anti-Discrimination Board of NSW


​​​​​Legal Case

Employee dismissal due to "back biting"

Developing your policies and procedures

The SMH recently reported on a retailer’s Code of Conduct which required employees to “keep it real” and “be fun” on pain of disciplinary action up to and including dismissal. The report brought to mind the case of a childcare worker found to have been unfairly dismissed for “back-biting” which was included in a list of sackable offences under her employer’s bullying policy. So what are the rules for effective (and enforceable) workplace behaviour policies?

image of two women gossiping
A childcare worker, Ms Davies, was dismissed for “back-biting” after commenting that one co-worker was lazy and another incompetent. Her employer said the policy was aimed at encouraging people to speak up about their concerns instead of back-biting but Fair Work Australia found it inadequate because:

“Back-biting” wasn’t defined and employees had different interpretations of the term, and

it was ‘an extremely blunt instrument” justifying the instant dismissal for the slightest breach.  

Ms Davies’ comments were not sufficiently “odious” to warrant dismissal. There was also a lack of procedural fairness in the way the complaint against her was handled. The FWA Commissioner noted that the Centre did not have a procedure to deal with complaints. No action had been taken in relation to another, more serious, complaint. Ms Davies was awarded $9,480 in compensation. 

Tara Davies v Hip Hop Pty Ltd t/a Hippity Hop Child Care [2011] FWA 776 (4 February, 2011) ​

Policies and procedures

When developing policies and procedures for dealing with unacceptable workplace behaviour such as discrimination, harassment and bullying:

Find out what the law says. The Anti-Discrimination Board’s website or its Enquiry Line are good places to start. 

If behaviour is unlawful as well as a breach of policy, say so​. See  Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102 (20 February 2013).

Give examples but ensure that you are using plain English, not slang, colloquial or ambiguous expressions. Define key terms such as “discrimination”, “harassment” and “bullying” which may have a legal as well as an everyday meaning.    

Avoid zero tolerance policies. To ensure that disciplinary action is not “harsh, unjust or unreasonable” and, therefore, unfair, all the facts, including mitigating circumstances, have to be taken into account. See Steven Lambley v DP World Sydney [2012] FWA 1250 912 March 2012) 

A policy, which states the basic principles and values to which the organisation is committed, such as: “a workplace free of discrimination, harassment and bullying” should be accompanied by a procedure which provides a consistent process for putting the policy into effect - for example, how to complain if you are discriminated against.  

Train all employees - staff and management - in the implementation of the policy and procedure.

Monitor to ensure that they are in fact being used and that they are effectively serving the purpose for which they were designed. 

Use guidelines and sample policies and procedures such as those produced by the Anti-Discrimination Board but remember that your policy and procedure has to meet the particular needs of your workplace, industry and people.  

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