Zero tolerance policies are in theory not an unwise position for HR to take on issues related to misconduct – however, as recent Fair Work judgments have shown, the policies are all too often arbitrarily applied and have resulted in successful unfair dismissal claims.
Risk management author and expert, Joseph Koletar, says the flaw in zero-tolerance programs are precisely that they call for uniform enforcement. In his book Rethinking Risk: How Companies Sabotage Themselves and What They Must Do Differently, Koletar gave the example of a trucking company which had a new code of conduct which stated: “Any violation of law will be grounds for immediate dismissal.” However, the company’s truck drivers regularly had to park illegally in order to make deliveries on-time, and it was not unusual for a single truck to pick up six or more parking tickets in a day. As such, the policy could not be uniformly enforced.
“If a company adopts a zero-tolerance policy and fails to enforce it uniformly and to monitor it adequately, it leaves employees to guess what else the company is willing to tolerate,” Koletar said. In turn, he warned there is also the ‘human temptation’ to tailor sanctions to fit the nature and history of the employee. Thus, if a long-time employee who is a “nice guy” breaches the policy, that person may get a lighter penalty than an employee with less tenure who is unpopular.
Case study: Steven Lambley v DP World Sydney  FWA 1250 (12 March 2012)
In June last year two employees of a stevedoring company (a clerk and a foreman) got into a physical altercation in the workplace car park.
The company summarily dismissed both employees for the incident, citing their “zero tolerance” policy to verbal and physical altercations in the workplace.
Both employees filed unfair dismissal proceedings with Fair Work, though the foreman’s claim was later withdrawn. The clerk testified that he was tricked into partaking in the altercation, and that the supporting CCTV footage had been interfered with (a claim accepted on the balance of probability).
FWA found that HR conducted a flawed investigation of the circumstances surrounding the incident. Deputy President Sams cited evidence from the company’s HR manager (who conducted the initial investigation) that the foreman’s history of bullying and intimidation wasn’t considered as a contributing factor to the employee’s decision to fight, and neither was the unwillingness of others to cooperate with the investigation for fear of recriminations. The HR manager gave evidence that the clerk’s behaviour was completely out of character, but submitted that due to the zero tolerance policy towards workplace violence their only option was to dismiss both employees.
Although FWA deemed there to be a valid reason for the employee’s dismissal, as he had ample opportunities not to participate in the fight, the facts and circumstances of the resulted in the employee’s “manifestly unjust” dismissal, the FWA arbitrator found.
As a result the employer was ordered to immediately reinstate the employee and pay two months’ wages as compensation.
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