In the decision of Romero v Farstad Shipping (Indian Pacific) Pty Ltd it was found that, under employment law, a workplace policy did form part of an employee’s employment contract.
Central Issue
Ms Romero argued her employer’s:
- Workplace Harassment and Discrimination Policy formed part of her employment contract under employment law
- failure to comply with the Workplace Policy amounted to a breach of the employment contract under employment law
Appeal
On appeal the Full Federal Court held:
- failure to comply with the Workplace Policy amounted to a breach of the employment contract under employment law
- the Workplace Policy formed part of her employment contract under employment law
- as there was non-compliance this was a breach of the employment contract under employment lawWhat went wrong?
The difficulties for Farstad were:
- the language of the Workplace Policy was not merely directive or aspirational, but imposed mutual obligations on the employee and the employer
- the employee’s duty to comply with Workplace Policies was referred to in her letter of offer of employment
- the benefit of the Workplace Policy was a benefit that was consistent with the statutory and employment contract obligations of the employee and the employer
- there was regular reinforcement of the Workplace Policy and other company policies on an ongoing basis
- the Workplace Policy was the subject of an education program that employees were required to undertake at the time of employment
- the employee was required to sign the Workplace Policy
- there was no disclaimer stating that the Workplace Policy did not form part of the employment contract
Tips for Employers
Although some of the above points would apply as good HR practice, it would still be wise for employers to try and distance the possibility of a Workplace Policy being found to be contractual in nature by:
- not attaching Workplace Policies to an employment contract
- including a proper disclaimer in the Workplace Policy and employment contract
- complying promptly and fully with Workplace Policies
More Information
If you have any questions in relation to this article or if you would like any assistance in other employment law matters including employment contracts or you are seeking representation for a matter before the Fair Work Commission please call the leading employment lawyers Sydney, the Matthews Folbigg Workplace Solutions team on 9635-7966 to speak with one of our employment lawyers. about your employment law issue.
