Employee Handbook or Human Resources Manual Revision

EMPLOYEE HANDBOOK (OR HUMAN RESOURCES MANUAL) REVISION

Contents:-

• Is it time to revise your employee handbook?
• Should you have an employee handbook?
• What should be the main goals of the handbook?
• What disclaimers should the handbook contain?
• What are some of the "handbook horrors" to watch out for?
• What are some likely areas where an older handbook probably needs revising?
• What steps need to be taken for changes in a handbook to become effective?
• Employee handbooks - handle with care!
• Typical contents of an employee handbook
• Summaries of CCMA and Labour Court cases on Policies and Procedures manuals

1. Is It Time to Revise Your Employee Handbook?

Most employers now have some form of employee handbook or personnel policies manual. Many such handbooks have not been updated for several years, however. When is it time to revise your employee handbook?

Consider the changes in the law which have taken place in the last decade alone. If your handbook was last updated in 1990, you have failed to incorporate such huge developments in employment law as the Labour Relations Act, Employment Equity Act, Skills Development Act, Basic Conditions of Employment Act, and amendments to the UIF Regulations, Labour Relations Act, Earnings Threshold amendment, as well as adherence to the numerous Codes of Good Practice. Any handbook more than a few years old has also failed to address literally hundreds of labour court cases dealing with handbook-related issues. State government agencies have also issued numerous regulations and interpretive decisions and recommendations in recent years which affect handbook policies (for example, the . Finally, new technologies have arisen during the last decade which should be addressed by workplace policy manuals.

As should be obvious by now, any employer who has distributed an employee handbook should be constantly monitoring the manual, with the assistance of legal counsel, to determine whether revisions are needed.

In the course of undertaking a revision of any employee handbook, however, or in drafting a first-time manual, there are a number of questions which should be asked. These questions include: Should you have a written employee handbook at all? What should be the main goals of the handbook? If you have a handbook, what disclaimers should it contain? What are some "handbook horrors" to watch out for? What are some likely areas where an older handbook probably needs revising? and What steps need to be taken for changes in a handbook to become effective? Each of these questions is addressed below.

2. Should You Have An Employee Handbook?

Handbooks serve many valuable purposes, but they also carry with them certain risks and obligations. With the dramatic increase in employment litigation during the last two decades, some employers have found themselves in court because of ill-advised employee handbook provisions. Other employers have found that their handbooks were indispensable in keeping them out of court. Even though most employers now have employee handbooks, they are not necessarily right for every employer. In particular, no employer should undertake to put a handbook in place without being prepared to make a substantial time and monetary commitment to the drafting and updating process.

Handbooks can be valuable communications and employee relations tools. They can be extremely helpful in maintaining consistency among supervisors, properly orienting employees and avoiding misunderstandings over workplace policies. Many employers also have found that direct communications with employees, such as in written statements of policies, can help to reduce the need for employees to seek out union representation in the workplace. Clear work rules can help to support disciplinary action and avoid charges of unlawful discrimination. All of these reasons may be good grounds for adopting an employee handbook.

The problems with handbooks have arisen from court decisions in recent years which have found employee manuals in some circumstances to be binding employment contracts. Most often, the difficulties in these cases were created by the employers themselves, who made promises in their employee handbooks which were not kept. Detailed (and unfollowed) disciplinary warning procedures, unclear probationary periods, unkept evaluation schedules, and inconsistent benefit descriptions, all have created liabilities for employers. At the same time, the situation has sometimes been worse for employers who have chosen to rely on unwritten employment policies and who have tried to avoid having written handbooks. Such employers have had problems in proving what their employment policies actually are. Disputes between employees and supervisors may be more common. Charges of favoritism, often leading to unlawful discrimination, are more difficult to disprove without written policies to use as evidence.

Meanwhile, courts have increasingly come to recognize that properly drafted employee handbooks, containing appropriate disclaimers or "clarifications" of the employer's intent, can actually help to preserve management's discretion in discipline and discharge cases. Therefore, the best course for employers appears to be to make use of the many positive aspects of employee hand-books while drafting such manuals carefully to avoid exposing the employer to increased employment liability. We recommend strong disclaimers , but also careful draftsmanship to avoid over-promising and to preserve management's discretion to operate its business in ever-changing environments.

3. What Should Be The Main Goals Of The Handbook?

As should be clear from the previous discussion, handbooks can serve several different purposes, but the various goals of employers with regard to these policy manuals sometimes conflict with each other. The handbook is usually intended to be a positive employee communications tool. The desire to avoid litigation, on the other hand, can lead some employers to fill their handbooks with disclaimers and "legalese," which may upset or confuse employees. At the same time, too much emphasis on "job security" and warm human relations may lead employers to over-promise, or to establish policies which will later be regretted in an employment lawsuit.

Handbooks should be clearly written and organized so that they can be understood by employees. The handbook should be written in a positive and friendly manner and should attempt to foster a feeling of well-being - up to a point. A certain amount of legal language is indispensable in the present litigious environment. Disclaimers and reservations of management's rights should not be watered down or hidden to such an extent that they lose their effectiveness.

It is possible to balance the competing needs for good communications and litigation avoidance in most employee handbooks. Where these two goals run into direct conflict, however, most employers will be better served by making sure that their legal needs are protected first and foremost. No one in upper management will be too pleased when a large court judgment results from a "friendly" but unprotective employee handbook.

4. What Disclaimers Should The Handbook Contain?

Most employers have by now become aware of the general need to have "disclaimers" in employee handbooks, as discussed above. Many handbooks still fail to set forth enough clarifications or explanations of the employer's intent, however, and may be inadequate to protect the employer under recent court decisions. Most employer handbooks should contain a series of statements which include at least the following:

• The handbook does not create not a contract, express or implied.

• The handbook is not all inclusive, and is only a set of guidelines.

• The handbook does not guarantee employment for any definite period of time.

• The handbook applies to the following categories of employees: [fill in].

• The handbook supersedes any previous handbook or unwritten policies.

• The handbook can only be changed in writing, by the president of the organization.

5. What are Some "Handbook Horrors" to Watch Out For?

No matter how many times an employer disclaims all contractual intent in its employee handbook, there can be no absolute guarantee against employee lawsuits or judicial scrutiny of handbook language. For this reason, employers are well advised to draft their handbooks carefully to avoid making any commitments to which they would not wish to be bound at a later time.

For the same reasons, it is usually inadvisable to spell out a rigid, detailed set of disciplinary procedures, even though employers are generally well advised to provide progressive warnings to employees prior to discharge. A number of employers have lost employment suits because of a supervisor's failure to adhere to the employer's own stated disciplinary procedures.

Another issue created by some handbooks concerns the subject of performance appraisals, where a promise is made that such reviews will occur on an annual or similar regular basis. Problems in court have arisen for some employers when management has failed to conduct the appraisals at the appointed time. This problem can be readily addressed, however. The handbook should state that appraisals will "normally" or "generally" be held at the chosen time, but that they may be conducted more frequently or less frequently, depending upon the business needs of the employer. These examples highlight the need to retain flexibility in handbook language, as much as possible.

6. What Are Some Likely Areas Where An Older Handbook Probably Needs Revising?

As noted at the outset of this article, several employment laws have been passed during the last few years, which may require changes in older employee handbooks. For example, Codes of Good Practice issued in terms of the Labour Relations Act and Basic Conditions of Employment Act require employers to set forth their Disciplinary and Harassment policies in any applicable handbook. Similar attention should be paid to recent developments connected with harassment policies relating to sex and other protected categories, lie detector tests (now generally prohibited), and statements about unions.

Still other grounds for updating handbooks may arise from issues where there have been no new laws, but where new technologies or changing social practices need to be addressed. For example, new policies on e-mail and computer monitoring, trade secrets, workplace smoking, conflicts of interest, personal appearance, and employee dating. New employee benefit programs also should be referenced in the employee handbook, while stating that more detailed provisions in the benefit plans themselves always control.

7. What Steps Need To Be Taken For Changes In A Handbook To Become Effective?

Many employers who make revisions in their employee handbooks give little thought to the problem of how to put these changes into effect. Unfortunately, this is another area where the courts are increasingly adding to the complexity of employment decisions. It is clear from the Labour Relations Act that any changes to employment policies need to be communicated to all employees to be effective, and in certain instances, employees need to be consulted on any changes to employment practices. Always seek legal advice from your employment law specialist before implementing such changes.

For example, the implementation of a no-smoking policy does not require any prior consultation with employees, whereas changes to working hours or overtime requirements always requires consultation with affected employees.

8. Employee Handbooks: Handle With Care

As the foregoing discussion should make clear, employee handbooks can have explosive effects in the workplace. If handled with the proper care, they can and should be valuable employee communications tools which can help to avoid or reduce litigation costs. If mishandled, however, handbooks can backfire on employers. No single employee handbook fits every company, however, and regular monitoring and updates are strongly recommended, with a detailed legal review.  

9. Typical Contents of an Employee Handbook

Key:-

10. Summaries of CCMA and Labour Court Cases on Policies and Procedures Manuals

Examples of presentation of employee handbooks as evidence in CCMA proceedings.

SACCAWU V City Lodge (ARB)

Mr Laughland further handed in a copy of the employee's handbook in which it is clearly stipulated that alcoholic beverages may not be consumed whilst on duty.

NUMSA v TMS (ARB)

that dismissal was an appropriate sanction as in terms of the company's rules and regulations the penalty for a driver who is under the influence of alcohol is dismissal. In the employee information handbook under 'Drivers' Additional Rules' it is clearly indicated that driving under the influence of alcohol or any intoxicating substance is strictly forbidden and constitutes a dismissable offence.

FAWU v Enterprise Bakery (ARB)

Oesman testified that each driver is issued with a driver's manual on employment which manual contains rules relevant to the driver's job function.

FAWU v Rainbow Chickens (ARB)

That at the disciplinary hearing he followed the disciplinary procedure manual and that his belief is that the trust relationship is broken where theft is involved hence the termination of the employees services.

 Padayachee v Kynoch Feeds (ARB)

In response thereto, J. Oxton on behalf of the Employer Party stated that "According to item 7.5.1. of the staff manual I am afraid that a retrenchment package is not applicable in your particular case". At no stage of the arbitration proceedings did the Employer Party hand over such a staff manual to the

 Erasmus v Metro Cash & Carry (ARB)

The Employer also handed in a copy of the Metro Disciplinary Complaint and Grievant Procedure Manual and pointed out that the charge was under Section 3.4.5 which provides: "Misappropriation - Applying or attempting to apply to a wrong use, or for any unauthorised purpose any funds or property belonging to the company". The goods in question consisted of one plastic bottle containing fruit juice which the Employer alleged had been

 Wentink v Total South Africa (ARB)

It was argued that although the applicant initially denied that he had been issued with a disciplinary code he had subsequently acknowledged that he had used the blue Human Resource manual which contained the disciplinary code under cross examination. From the above reason stated, it was argued that the applicant was aware that he should not have accepted the gift from IGS without disclosing it.

 Saccawu v Paxinos KFC (ARB)

According to the manual on Conditions of Employment under the Disciplinary Code and Procedure of the employer at paragraph 3.1, serious offences include theft, bribery, fraud etc. I am certain that the alleged offence against the employees in this case fall under that category and must therefore be regarded as a serious offence.

 DUSICKA v TECHNICARE (ARB)

When an employee is appointed he or she has to undergo an orientation course, the company's expectations from the employee are explained and a Business Code (staff manual) is issued. The Code explains the procedures of key functions and conduct expected from each employee. The Code was first developed and distributed to staff in May 1997 at which time Mr Dusicka also received one. Before an employee is sent to work for a specific client, a manual containing the specific needs of the clients is issued and the employee is trained in this regard.

 NUMSA v TELJOY / MASTER CARE (ARB)

The employer submitted a Teljoy manual relating to a code of conduct for drivers and installers. However, this was submitted with closing arguments after the arbitration hearing and the arbitrator cannot admit this as evidence as there is no indication as to whether Mr. Smallone received such a manual or not. However, it is reasonable to expect employees to be civil to the public when conducting the employer's business.

 DE KLERK v NATIONAL STANDARD CO (ARB)

Referring to the Code of Conduct, included in the Human Resources Manual, Mr Claassen explained that the Code provides a list of serious and dismissable offences only, such as theft, drunkenness and fighting. Offences of a less serious nature are not listed and are treated on merit through investigation and disciplinary procedures.