By Jennifer Wiegele

Most employers understand the need for policies in the effective management and regulation of the workplace. However, it is not uncommon to see errors in drafting, introducing and administering such policies which can render them effectively useless.

The difference between a well-drafted and clear policy that is known to employees and consistently enforced and one that is vague, unreasonable and not consistently followed or misunderstood is usually the difference between an effective and ineffective policy, as illustrated by the examples below.

Ineffective Policy in Action
First, in recent case in the United Kingdom, the lack of a clear policy proved problematic for the employer. In that case, the employee, Shannon Gleeson, worked for EasyJet as a flight attendant until she was terminated for gross misconduct and theft for eating a bacon sandwich worth approximately $7.50 CAD during an international flight.

Prior to the incident, Gleeson had been employed with EasyJet for three years and had an exemplary record. On her first international flight, Ms. Gleeson was unable to find food that was safe for her to eat on due to her nut allergy. Ms. Gleeson’s manager, the flight’s purser, gave her a bacon sandwich from EasyJet’s stock of menu items available for passengers to purchase during the flight. Ms. Gleeson took the sandwich and did not ask her manager for a receipt to confirm the sandwich had been paid for.

EasyJet conducted an investigation into the matter and concluded that Gleeson breached standard operating policy by failing to request a receipt to confirm her manager paid for the sandwich. She was dismissed for gross misconduct and theft and subsequently filed a wrongful dismissal complaint.

Lack of Clear Policy Wings EasyJet
EasyJet argued that Gleeson had breached a standard operating policy by not paying for the sandwich or asking to see a receipt which showed her manager had paid for the sandwich. However, the court heard evidence that the crew purchase procedure policy placed no obligation on the consumer to see a receipt if food was given to them.

The EasyJet manager who dismissed Gleeson responded in testimony that: “It doesn’t say it in black and white, but the expectation is there. There is regular communication to all of the cabin crew.”

Ultimately, however, the lack of any “black and white” policy regarding food given to staff and lack of a method for tracking missing stock on a flight proved fatal to the employer’s case. EasyJet settled the matter out of court for an undisclosed amount before a decision was rendered.

A Similar Scenario with Clear Policy
By contrast, in Roe v. British Columbia Ferry Services Ltd., 2015, BCCA 1, the clarity of the employer’s policy was a significant factor in the Court’s finding of serious misconduct by an employee who breached a policy.

In that case, the employee, Gregory Roe, was a terminal manager for BC Ferries and was dismissed for just cause for giving complimentary food and beverage vouchers to his daughter’s volleyball team.

Roe sued for wrongful dismissal and claimed that he had misunderstood the policy regarding distributing complimentary vouchers because it was too vague

The BC Supreme Court held that there was no just cause for dismissal, however, the Court of Appeal reversed the decision and ordered new trial.

Of importance in the Court of Appeal’s determination were the written obligations regarding integrity and honesty in Code of Conduct which formed part of Roe’s employment contract, the clarity of the policy, and the evidence indicating that Roe was knowledgeable about the policy.

The Moral of the Tale
What can employers learn from this tale of two policies?

First, in considering whether to introduce a policy, employers should give careful consideration to whether the policy is reasonable and has a valid operational purpose. A reasonable policy created for bona fide operational reasons is likely to be given more weight by a decision-maker and enforced than an unreasonable one.

Second, once a policy is created, it must be clear and unequivocal. Terms or directions in the policy must be clear and unambiguous. Vague policies are among the most problematic in terms of enforceability as the examples above indicate.

Third, policies should clearly state the consequences associated with a failure to follow them. Taking this step will mean better chances that any discipline or consequence associated with a policy breach will be upheld if challenged.

Fourth, policies must be brought to the attention of employees when they are introduced. Good practices involve attaching the policy to employment contracts and having employees sign-off, reviewing a new policy individually with each employee or having a training session and having yearly sign-off and review of important policies. It is also important to inform employees of any changes to the policies and review those changes with employees to ensure they are understood; and

Finally, consistent enforcement is key. The failure to do this may jeopardize an employer’s chances of upholding discipline or a dismissal for a policy breach.

Jennifer Wiegele is a partner with Miller + Titerle + Company.