Moores is supporting greater awareness about codes of conduct during the Festival of Community Directors’ Code of Conduct Week (10-14 February 2020), including hosting an affordable webinar on the topic. This article provides an insight into some of the issues you’ll need to consider.
The recent public and controversial case of Australian rugby player Israel Folau has raised questions about the rights of freedom of religion and freedom of expression in the context of employment and employer codes of conduct.
Folau faced disciplinary action for breaching the Rugby Australia code of conduct by making controversial religious-based posts on social media, and his contract was ultimately terminated by Rugby Australia.
While the case was settled out of court and left us without a test case for the impacts of freedom of religious expression in the workplace, it has reignited debate about the need for a federal Religious Discrimination Bill, which will shortly be presented to Parliament. It has also brought up some interesting considerations for employers and codes of conduct.
Here are some of our top tips for organisations to consider when creating or reviewing a code of conduct:
Be specific, not generic
An effective code of conduct is not generic. It should be tailored to your organisation’s values, beliefs and work. For example, if your organisation provides support or assistance to children, vulnerable people, or people with disability, the code of conduct should be clear about what is expected and what is inappropriate in workplace interactions with vulnerable clients.
Set clear expectations
Your expectations for workplace behaviour should be clear, simple and concise. They should be presented in a format that is easily understood by all employees. It might include pictures, flow charts or examples. The code should set out the ramifications of a breach and serve as a guide for managers, enabling them to understand when intervention or disciplinary action is required. The code should not be legalistic. Organisations should require staff, directors and volunteers to read the code of conduct as part of their induction and verify (electronically or in writing) that they agree to comply with it.
Review your employment contracts for clarity around codes
You should review your employment contracts to:
- ensure that they contain an obligation on the worker to comply with policies and procedures (including any code of conduct)
- ensure that they stipulate the consequences of a breach by the worker, including disciplinary action up to the termination of employment
- clarify that your policies, procedures and code of conduct are not part of your workers’ contracts
Be aware that if your policies, procedures or codes of conduct are poorly drafted, they can hold an organisation to an impossible standard, exposing it to unnecessary risks.
For instance, an issue can arise where a policy, procedure or code of conduct contains a “motherhood statement” such as, “We will always protect your health and safety”, which in reality cannot be guaranteed.
Highly prescriptive processes may be inappropriate. For example if employers are required to follow a rigid performance management or disciplinary process without flexibility, or stipulate a minimum 48-hour notice of performance or disciplinary discussion.
Another impossible standard might be requiring a response to a complaint within 24 hours, which might not always be possible.
If the contract does not explicitly exclude those policies, procedures or codes from a contract, an employee could claim that they formed part of the contract and that the employer was in breach.
A breach could also give rise to a worker’s compensation claim, because the failure to comply with a policy will generally mean that the action taken by an employer was not a “reasonable management action undertaken in a reasonable manner”.
Focus on what your workers should do
The code should not be framed in the negative by setting out only what employees shouldn’t do. It should also contain a section on behaviours that are acceptable, encouraged or expected. Consider using a positive tone; e.g. “we all must ensure …” or “the organisation depends upon …” as well as confirming your expectations with statements that begin: “you cannot …” or “you must not …”.
Look beyond the workplace
Does your organisation want to restrict workers’ comments and behaviour both inside and outside the workplace? To what extent? It may be important to restrict comments that are contrary to the purpose or ethos of the organisation and that could damage its reputation.
For example, if an organisation has a strong LGBTQI presence and focus, then related derogatory comments made by workers out of work hours could be made a breach of the code.
Given the Folau case and the potential impact of the proposed Religious Discrimination Act, organisations should also consider the extent to which they wish to limit out-of-work comments made for religious purposes, and whether the restrictions are likely to be lawful under the proposed reforms.
Be clear about online behaviour
Given the rise of social media in the workplace through platforms such as Twitter, Instagram, Facebook and LinkedIn, your organisation should set expectations in relation to online behaviour.
Your code of conduct may include cross-references to your policies on bullying, harassment and discrimination. As noted above, it should clearly set out expectations in relation to appropriate and inappropriate online behaviours both inside and outside the workplace.
The importance of this was highlighted in the recent High Court case Comcare v Banerji  HCA 23, in which a public servant's public political comments outside work were found to have breached the Australian Public Service code of conduct.
Consult with the people affected
Given that the code of conduct governs employee behaviour, organisations should consult their workers on what ethics means to them and what values and beliefs they believe the organisation holds. Seek feedback on your existing code of conduct to establish what is working and what might need to be refreshed.
Protect against fraud
The number one concern raised by the public with the ACNC relates to fraud and financial crimes within charities. Accusations of fraud can have a huge impact on an organisation’s funding, reputation, morale and sustainability. As a not-for-profit, you should use your code of conduct to establish an ethical culture to protect against fraud. A well-drafted code of conduct with expectations of ethical behaviour, such as not accepting gifts from donors or clients, will reduce the fraud risk and embed an ethical culture.
Consider other resources
Your organisation should consider other resources that might be referred to in a code of conduct, especially those that are relevant to your ethos, values and sub-sector. For example, you might seek out resources – or training – that deals with behaviour towards vulnerable people, people with a disability, or LGBTIQ communities, and reference these in your code of conduct for anyone interested in further reading.
Lead by example
Board members, CEOs and managers should lead by example and model the behaviour and culture outlined in the code of conduct. Employees are then more likely to follow suit.
Induction training and refresher training for workers on policies, procedures and the code of conduct, should be a feature of every organisation. These sessions should aim to workshop problems and allow employees to deepen their understanding of the workplace’s expectations.
How Moores can help
If one of your workers breaches your code of conduct, disciplinary action – including dismissal – may be appropriate. Moores provides help with contracts and policies, legal advice on processes to address misconduct, and representation if a claim arises. Contact practice leader Skye Rose or lawyer Ellen Turner on (03) 9843 2100, or email email@example.com for assistance.