Originally featured on Our Community’s website. Click here to access the ‘Code of Conduct’ webinar recording.
Background
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 breaches of the player Code of Conduct over controversial religious social media posts, and was ultimately terminated by Rugby Australia. While this case was settled 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 has been drafted and will shortly be presented to Parliament; and
- brought up some interesting considerations for Employers and Codes of Conduct.
Here are some of our top tips for organisations to consider for an effective Code of Conduct:
- Tailoring
An effective Code of Conduct cannot be generic. It should be tailored to your organisation’s values, beliefs and work. For example, if your organisation provides support/assistance to children, vulnerable persons or persons with a disability, the Code of Conduct should be descriptive on what is expected and what is inappropriate conduct in the workplace and when interacting 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 (i.e. it may be important to consider pictures / flow charts / examples etc.) The Code should set out the ramifications of a breach and serve as a guide for managers to understand and know when intervention/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 on-boarding process, and verify that they will comply with it (electronically or in writing). Employment contracts should also be reviewed 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 the policies, procedures and code of conduct do not form part of the contract, without which an employer may be exposed to a breach of contract claim.
- Don’t focus on the negative
The Code should not just be framed in the negative by setting out what employees shouldn’t do. There should be 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…” rather than “you cannot do….” Or “you must not…”
- Consideration? of out of work restrictions
Does your organisation want to restrict comments/behaviour inside and outside of work, and to what extent? For example, it may be important to restrict comments that are contrary to the purpose/ethos of the organisation and wish could cause reputational damage (i.e. if the organisation has a strong LGBTQI presence and focus then comments made by workers out of work hours that are contrary to the LGBTQI community could be a breach of the Code). Given the Folau case and the potential impact of a Religious Discrimination Act, organisations should also consider the extent they wish to limit out of work comments for religious purposes, and whether the restrictions are likely to be lawful under the proposed reforms.
- Online behaviour
Given the rise of social media in the workplace through platforms such as twitter, Instagram, Facebook, even Linkedin, organisations should set expectations in respect of appropriate online behaviour. This may include cross-reference to your Bullying/Harassment/Discrimination Policy. As noted above, your Code of Conduct should clearly set out appropriate and inappropriate online behaviours both inside and outside of work. The importance of this was highlighted in the recent High Court Case, Comcare v Banerji [2019] HCA 23, in which a public servant’s public political comments outside work was found to have breached the Australian Public Service Code of Conduct.
- Consult
Given the Code of Conduct will govern employee behaviour, organisations should consult their workers on what ethics means to them and what values/beliefs they believe the organisation holds. Seek feedback in respect of previous codes to see what is working and what might need to be refreshed.
- Fraud
Not-for-profit entities should have a Code of Conduct to establish the organisation’s ethical culture and to help protect against fraud. The number one concern raised by the public with the ACNC relates to fraud and financial crimes within charities. This greatly impacts an organisation’s financial prospects (i.e. funding), reputation, morale and sustainability. Having a well-drafted Code of Conduct which includes behaviour around best-practice (i.e. not receiving presents/gifts from donors or clients) will reduce the risk of fraud within the organisation and embeds the ethical culture.
- Other resources
Organisations should consider other resources that should be referred to in the Code of Conduct, especially those that are relevant to the ethos, values, industry of the organisation. For example, if there are ethical resources in respect of behaviour towards vulnerable persons, persons with a disability, LGBTIQ communities, consider referencing these at the end of the Code for any one that may be interested in reading in their own time. These resources can then be explored in greater detail during subsequent training sessions.
- Lead by example
Board members, CEO and managers should led by example and model the expected behaviour/culture. Employees are more likely to follow suit.
- Training
Induction training and periodic training for employees on policies and procedures and the Code of Conduct should be undertaken by organisations. These sessions should aim to workshop problems and allow employees to deepen their understanding of the workplace’s expectations.
How Moores can help
If your workers engage in behaviour that breaches your Code of Conduct, disciplinary action (including dismissal) may be appropriate. Moores provides assistance with drafting contracts and policies, legal advice on the proper process to address misconduct, and representation if a claim arises.
For more information, please do not hesitate to contact us.
Click here to access the ‘Code of Conduct’ webinar recording, created in partnership with Our Community