Risky Business: How having a comprehensive workplace policy and seeking legal advice before terminating employment will save you.

August, 2014

By Clayton Payne

A recent decision of the Fair Work Commission highlights the importance of well drafted polices in any workplace.

In Arne McDonald v TNT Australia Pty Ltd T/A TNT Express, Senior Deputy President O’Callaghan decided that a former employee should be reinstated to the position he held prior to his dismissal, having concluded that the termination was harsh, unjust and unreasonable.

During one of the employee’s deliveries, a customer complained that her conversation with the employee, “had sexual undertones and was unprofessional” when the employee made ancillary comments about the spelling and use of her name. These comments, according to TNT, were in breach of the company’s Workplace Harassment and Discrimination Policy.

In finding that the termination was harsh, unjust and unreasonable, the Senior Deputy President noted that the employee’s comments were, “inappropriate, clumsy and unnecessary” but that the comments did not constitute a breach of TNT’s Workplace Harassment and Discrimination Policy.

In deciding that the employee should be reinstated, the Senior Deputy President took the following factors into consideration:

The Senior Deputy President also ordered that the employee be paid loss of remuneration since the time of his dismissal.


This case highlights the need for policies, and training, which clearly highlight what type of workplace behaviour is acceptable and what sort of behaviour can lead to disciplinary action being taken.

All workplaces should have policies in place and training conducted dealing with matters such as sexual harassment, workplace harassment, and unlawful discrimination.

Employers should also consider whether legal advice should be obtained before proceeding to discipline or terminate the employment of an employee.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au


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