As an employer, you may have dealt with employees acting in breach of your workplace policies or procedures. You may also have to deal with employees who claim that they do not have to undertake certain work activities because you did not expressly identify them as terms of engagement in their employment contract. Scenarios like these raise the question of whether employees are legally obliged to adhere to terms found outside of their employment agreement. Like most questions of law, the answer will largely depend upon the individual circumstances. This article explains some general legal principles that shed light on the obligations of employees outside of their employment contracts.
Terms Found in Other Documents
A contract of employment may refer to terms that employees can find in external documents. The range of documents that provide additional terms are expansive, including:
- modern awards;
- national employment standards;
- industrial agreements;
- company codes of conduct;
- workplace rules;
- manuals;
- company handbooks; and
- policies and procedures.
Just because a contract of employment refers to external terms, this does not necessarily mean that those terms form part of the employer-employee engagement. Both parties may consider such terms as mere guides and not intend them to have any legal force. Whether or not an employee must adhere to terms expressed in external documents will ultimately depend on the parties’ objective intention at the time of contracting.
When we talk about the objective intention of the parties, we must ask ourselves, would a reasonable person in the circumstances have intended or understood the term in question to have contractual force? If the answer is yes, it forms part of the employment contract. If the answer is no, it does not, and it operates as a mere guide, the employee having no contractual obligation to abide by it.
Even if employees are not contractually bound to abide by terms outside of the contract, like policies and procedures, there are many circumstances when employees are still legally bound. This is particularly the case if other laws underpin the terms, such as laws against workplace discrimination, bullying and sexual harassment.
How to Ensure That Employees Abide by Additional Terms
As an employer, you should be proactive in making employees aware of certain terms that you expect them to abide by during their employment.
For example, if employees are required to abide by workplace policies, simply having the policies in place is not enough. It is best practice to have employees sign a document to acknowledge that they understand and agree to workplace policies prior to commencing their duties. You should also ensure that employees have access to the policies should they need to refer to these again during the course of their employment. Additionally, if you change or implement policies, you should also ask your employees to acknowledge and accept these changes.
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What to Do if Employees Breach Workplace Policies or Procedures
Even if you have not incorporated your workplace terms, policies or procedures into the employment contract, there are actions you can take if employees fail to comply with these.
If employees breach workplace policies or refuse to comply with procedures, you have the options of:
- issuing a warning; or
- terminating the employee.
Termination always carries the risk that the employee could bring a claim against you for Unfair Dismissal or Breach of General Protections. If you are considering terminating an employee, you should ensure that you follow the correct procedures related to this, including affording procedural fairness.
Termination may be justified, particularly in cases where the employee’s breach of a term contravenes other laws. These can include laws against workplace sexual harassment, bullying and discrimination.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
Businesses tend to take comfort in drafting an array of workplace policies and procedures that address everything from work-from-home policies to dress codes. While some of these documents are designed to act as mere guides to make an employee’s day-to-day work life easier, there are times when such terms are intended to have contractual force. You should consult a legal professional to ensure that you have effectively incorporated important workplace terms into the employment contract if they are not otherwise enforceable at law.
If you have any questions regarding your employees’ obligations, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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