Author: Daniel A. Lublin
But employment manuals can form terms of employment
Left to pay part of her customers’ bill, waitress Karen Glazier grabbed her manager’s swipe card and wrote off the debt, ensuring that her own paycheck wouldn’t be docked. Although Glazier didn’t have permission, she thought she was just following procedure. When her employer found out, however, Glazier was fired for breaching company policy. The only problem was that she had never been given a copy.
Glazier, a waitress at a busy restaurant in London, Ontario, was all too familiar with customers who would dine and then dash, leaving her to cover the debt. Faced with the prospect of paying from her own pocket, the procedure was simple. With her manager’s permission, and his cash-register swipecard, Glazier could simply write-off the outstanding amount and it would be all but forgotten. If her manager was busy, Glazier could take and use his swipecard but she would later be expected to justify any write-offs.
One busy night, Glazier served a table of 10 people who asked her to split the bill individually. She relied on the customers’ memory and honesty in calculating the tab but later realized that $15 hadn’t been charged. Instead of asking for her manager’s authorization, she took his swipecard and wrote-off the amount herself. Later, she was fired for what her employer alleged was “theft” and “failure to comply with company policy”. Glazier sued for wrongful dismissal.
At trial, her employer attempted to justify its actions by arguing that Glazier failed to follow company policy. It relied on an employee handbook that Glazier had signed, containing specific rules for writing-off a customer’s bill. However, Glazier had never actually received a copy. As a result, she couldn’t possibly be expected to remember all of the rules and policies in the handbook, let alone the procedures for complying with them, the Court said. It found that agreeing to such a rule would have been totally unreasonable.
Rules in employment handbooks or manuals do not automatically become terms of employment, allowing employers to terminate employees for any alleged noncompliance. However, with the following principles firmly in place, it’s more likely that a court would find such rules enforceable to begin with:
The manual must be distributed to the employees. Courts will not hold employees responsible to follow abstract rules without having received a copy.
Pay attention to what you sign. Some employment contracts or offer letters direct your attention to additional rules or policies. By signing the contract, you are then expected to follow those rules.
Rules that are not consistently enforced can’t always be held against you. Where employers show lassitude in some cases and severity in others, courts will scrutinize discipline more severely.
Employees must be warned that they will be terminated if a rule is breached. It is not sufficient to simply refer to the rule after the fact.
The rule must be reasonable. Courts are loath to uphold unreasonable demands placed on employees.