We have received a number of queries recently that may be of interest and have some relevance to your own businesses and have therefore summarised these for you.
EMPLOYEE REFERENCES
References are normally based on factual information, however on occasions they may be based on an employer's opinion.
A reference that is of an evaluative (opinion) nature and where the reference provider wishes themselves and the details of the reference to remain confidential must be held in strict confidence.
In a recent situation a solicitor acting for an employee in a personal grievance claim requested information on who provided the reference and the actual details of the reference. As the information provided was evaluative and the provider wished to remain confidential, the employee's solicitor was informed that under section 29 of the Privacy Act, the information could not be divulged.
NOTE:
- If you receive references that are based on opinion and are confidential, section 29 of the Privacy Act provides you with the authority to withhold the passing on of the information to either the employee or their representative or to any other person. Remember that the Privacy Act also prohibits you from holding or passing on information that is not public knowledge and for which you do not have the employees permission to pass on.
- If you are providing reference information that is evaluative, you should ask that you and the information remain confidential between you and the prospective employer. You do not want the ex-employee to come back at you, arguing against your opinion.
- If the information is factually based, then this information can not be held confidential as per section 29 of the Privacy Act.
Remember be very careful when providing references. You should only provide Certificates of Service in writing and provide actual references verbally. If you are unsure about the validity of the person enquiring, ask them for their name, company name and phone number then check these against the telephone book listing. Also, to ensure they have the employee's permission to seek references from you, ask for a copy of a signed acknowledgement from the employee.
CHANGE OF DUTIES
An employer cannot unilaterally change an employee's terms and conditions of employment. The terms and conditions as detailed in the signed employment agreement remain fixed throughout the full term of employment unless the following occur:
- The disciplinary process results in changes of duties, role or even demotion.
- A redundancy occurs.
- Termination of employment occurs following the disciplinary process or by the employee resigning.
- Changes are initiated by consensual agreement of both the employee and employer.
Employers do have the right to update and amend general company policies, however a suitable period of notice should apply and generally such changes should not be backdated. Employment Agreements should contain a clause that advises employees that company policies may be changed from time to time. If actual Policy detail is included as part of the employment agreement without such notification, then you may experience difficulty in applying any future changes.
EMPLOYEE ACCOUNTABILITY FOR COMPANY FUNDS
Employees can not be held accountable (by pecuniary means) for the loss of general company product or funds. For example, an employee working in a retail position cannot be required to make up any shortfall in till variations at the end of their shift/trading day, form their own pockets.
Employers can and should though use the disciplinary process in this situation and issue an appropriate level of warning. Employers are however able to deduct funds from an employee's pay for uniform items, specific staff accounts, for default (sick leave etc in excess of entitlement) and for failure for providing the appropriate resignation notice period. This is subject of course to having the required signed deduction authority (staff account/uniform) and specific clauses (Period of notice forfeiture) contained in the employment agreement.
