What are policies and procedures?

Policies and procedures are documents which outline an employer’s expectations of behaviour and conduct of their staff.

Policies and procedures are critical— they provide consistent and objective management of workforce issues.

From an employer’s perspective, developing and following reasonable policies and procedures ensures compliance with Australia’s complex and intricate industrial relations system.

From the worker’s perspective, reasonable policies and procedures ensure there is a clear understanding of expectations and that they are being afforded their rights.

Aside from compliance, without such documents it is far more difficult to create a harmonious and productive workplace culture.

How do I develop policies and procedures?

When looking to develop workplace policies and procedures, there are a number of key points to consider:

• what is the scope of the policy—who and what areas does the policy cover?


• who has responsibilities to observe and enforce the policy?


• what are the consequences for breaching the policy?


• what mechanisms exist to manage situations where a dispute arises over the application of the policy?


• who should be contacted should there be any questions regarding the policy and its enforcement?

How can I enforce policies and procedures?

This depends largely on their subject and scope.

As a general rule, the policy itself should clearly outline the process for how both employer and employee will approach a particular issue.

When seeking to enforce a policy, it is critical that an employer consider any relevant contextual factors that may affect whether its application is reasonable.

This is particularly pertinent if the employer is looking to take disciplinary action against an employee.

A recent example where an industrial tribunal found that an employer had acted unreasonably related to a direction for a worker to undergo a drug and alcohol test.

The worker had been totally incapacitated for work and was receiving compensation payments after sustaining a back injury.

They received a medical certificate to advise that he would be fit for a ‘partial return to work’ after a three-month absence.

At a meeting arranged to discuss the worker’s return, the company alleged that the worker had engaged in misconduct by being evasive in engaging with the employer to develop a return-to-work plan.

It was also alleged the worker was observed undertaking home renovations and displaying a level of activity inconsistent with the restrictions certified by his medical certificate.

In this same meeting, a company director accused the worker of being a ‘drug addict’ and told him he’d have to submit to a drug and alcohol test that day—knowing full well the employee was currently prescribed strong pain medications to manage his condition.

The worker refused to undergo the test, and the employer alleged this was indicative the test would return to a positive result and terminated the worker’s employment on the grounds of serious misconduct.

As a result, the worker’s compensation payments were discontinued.

The matter then went to trial; the court found that the employer had acted unreasonably in requiring the worker to take a drug test when he was not expected to be working for several more weeks.

Furthermore, the employer had reasonable knowledge that the medication the worker had been prescribed could have produced a positive test result.

Finally, the judge found that the director had sought to mislead the court as to the events that occurred in relation to the drug test.

Most important to consider for our purposes is the fact that the context here meant the employer could not unilaterally rely on its drug and alcohol policy to allege the worker had engaged in serious misconduct.

Their decision to terminate on these grounds was ruled unreasonable by the court (and again when the employer appealed the decision).

The court then reversed the decision to discontinue the worker’s compensation payments.

What’s the lesson here?

This case teaches us that in addition to developing policies, employers must be reasonable when seeking to enforce them.

Failure to account for circumstances may lead to an employer’s actions being ruled unreasonable with appropriate remediation being ordered.

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Disclaimer: The material contained in this publication is general comment and is not intended as advice on any particular matter, nor should it be relied on as a substitute for legal or professional advice. Wentworth Advantage Pty Ltd expressly disclaim all and any liability to any persons whatsoever in respect of anything done or omitted to be done by ant such person in reliance whether in whole or in part upon any of the contents of this publication.