Even the best-drafted policies can be rendered useless if they're not communicated – and understood – by all staff
By Stuart Rudner
As an employment lawyer, I’m often called upon to help clients “put out fires” such as allegations of human rights breaches and wrongful dismissal claims.
However, my favourite projects are those in which I am invited to work with a client in order to develop an overriding HR strategy that will help the organization to maximize its HR efficiency while minimizing liabilities. Doing so usually involves a review of core HR documents such as policies, procedures and contracts, as well as a consideration of processes and practices that impact human resources. This will usually go far beyond compliance, and assist the organization in developing an HR approach that increases their rights when it comes to managing personnel while reducing the likelihood of claims.
One of the cornerstones of a good HR strategy will be the development of a policy manual. Sometimes I am asked to draft the policies, and sometimes I am asked to provide a legal review after either the organization itself, or an HR professional, does the initial drafting. Either way, the organization is understandably concerned that the policies be drafted as clearly and effectively as possible. But even the best drafted policy will be utterly useless if it’s simply left to gather dust on a shelf — or, in modern times, on a hard drive or in “the cloud.”
Policies need to be communicated to all employees in a manner in which they will be understood. The organization must ensure the content, meaning and import of any policy are communicated to all employees. This does not mean a copy of a policy manual is handed to the employee, who is then asked to immediately sign a confirmation that they have “read and understood” all the policies. Obviously, that will not be effective, although it is still a fairly common practice. Employees must be given the opportunity to read the policies, understand them and ask questions.
After that is done, it would be reasonable to request confirmation. If there are significant changes, or if there is an important new policy being introduced, it’s often worthwhile to hold group meetings or information sessions in which the policy is explained and questions are invited. Either way, it’s critical that the employer be able to show employees were given reasonable opportunities to review and understand the policies.
Communicating the policy to all employees means just that — all employees, at every level. In some cases, I have seen organizations hold “lunch and learn” sessions in which they review important policies with staff. However, aside from the managers directly involved with the policies, supervisory and managerial employees are not invited and are not given their own sessions. As a result, they often proceed unaware of the details of the policies that have been implemented.
An example of the danger of this type of practice is a situation I heard about several years ago. In that case, an employee approached her supervisor at the end of her shift. In a somewhat timid way, she said she had something that she wanted to talk to him about. She then went on to explain how one of her colleagues had made inappropriate comments of a sexual nature to her that made her uncomfortable. In addition, she would occasionally catch him staring or leering at her. However, she concluded by saying she just wanted to make the supervisor aware of this, but did not want him to do anything about it or take any action. The supervisor, considering himself to be a gentleman and wanting to comply with his employee’s wishes, made a “mental note” of the concerns but did not file a report or take any further action.
Such a scenario is not unusual. The subsequent events were not particularly surprising. The leering and inappropriate comments continued and got worse. Eventually, the employee went off work on stress leave, and sued the employer. Among other things, she alleged she had been constructively dismissed due to the fact the organization knowingly allowed the harassment to continue and in fact breached its own policies. Specifically, she alleged — rightfully — that the sexual harassment policy in place at the time provided that any supervisor or manager that becomes aware of an allegation of sexual harassment has a duty to report it and the organization would then conduct an appropriate investigation. By complying with the employee’s request that he not take any further action, the supervisor had unknowingly breached the company’s own policies.
It became evident the supervisor was entirely unaware of the details of the sexual harassment policy that was in place and had been for several years. Although he knew there was a policy, he assumed it just said something along the lines of “don’t sexually harass your colleagues or staff”. Not surprisingly, the organization chose to pay some money rather than defend the allegations against it.
Many organizations have developed the practice of having their employees “sign off” every year, confirming they have read and understood all of the policies in place. However, they do so in a manner that makes it clear the employees never had the opportunity to do so. Employers should ensure this opportunity is provided, and that it is provided to all of employees, including those in supervisory or managerial positions.
Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or [email protected]. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.
