Organisations have numerous policies in place but are employees required to sign them? And if they haven't could that be used against the employer in a dismissal situation? A legal expert offers insight.
Businesses have numerous policies, from social media policies to codes of conduct, employees are required to adhere to. But so all these policies need to be signed by employees?
In Australia a man recently claimed unfair dismissal after he was fired for repeated failure to comply with company policies and procedures, one of which was refusing to sign the company social media policy.
However, in New Zealand refusing to sign a policy would not form part of a reason to dismiss an employee. Karen Radich, specialist employment law barrister at Clifton Chambers told HRM “in New Zealand an employee does not need to sign an employment policy, whether new or existing".
“While a signature would provide clear evidence that the employee knew about the policy, it is not a legal requirement in New Zealand in order for a new policy to be validly in place and may well prove to be an undue administrative burden for the employer,” she said.
Radich explained that in the case of an alleged breach of a policy the employer will need to demonstrate that the employee at least new of the policy or the rules it contained.
“In Hewlett v Winstone Pulp International Ltd (2008) the employee denied knowing about a new policy and the employer was not able to rebut that denial. In finding against the employer, the Authority noted the possibility that the employee was not aware of the new policy and said that the employer could not establish that he had read it. It is therefore worthwhile for employers to put in place a process which will enable them to demonstrate employees’ awareness of any policies.
“In the Employment Court case of George v Auckland Council last year ( NZEmpC 179) Ms George tried to argue that a policy did not apply because it had not been put on the staff intranet. The Court said in relation to that claim:
I do not think that it is open to Ms George to say that the new policy did not apply, despite her knowledge of it, simply because it had not been placed on the staff intranet. The argument would have succeeded if she had been unaware of it. An employee cannot be bound by a policy that they are unaware of and which the employer has taken inadequate steps to draw to the employee's attention. As in most cases the facts, and what was and was not known, are pivotal.
Radich recommends having a clause in employment agreements which notes the employee will abide by company policies. Additionally a process should be in place so that if new policies are introduced, or when new employees start, staff can be directed where to read them or provided with copies so that the employer can prove that the employee was aware of the rules if that is ever required in due course.
“The completion of an online reading tutorial or such like is one idea, or emailing links to the employee during their induction process and requiring an online ‘box tick’ process once each key policy has been read, is another. Where employees are starting to ‘stray’ from the rules, reminders in staff meetings or by email updates, is also a good idea,” Radich suggests.
Employers however should be aware, said Radich, that in some instances the employment institutions in New Zealand have held that prior consultation with staff or unions must occur before certain types of new policy are implemented or an existing policy changed. In particular, this is the case with drug testing policies.