Policies That Don't Bind: The Decision in Akmeemana v Murray
Australian Journal of Labour Law, Vol. 23, No. 2, pp. 137-147, 2010
5 Pages Posted: 28 Apr 2013
Date Written: 2010
From an employer’s perspective, policies are a formal method of conveying to employees, as well as assisting their compliance with, legal obligations in matters including workplace health and safety, grievance handling, sexual harassment, discrimination, trade practices, negligence and contract. Policies also serve to clarify the employee’s rights and responsibilities and enunciate accepted standards of conduct. As a separate document to each individual employment contract, policies offer consistency in regulating employment issues because they apply to all employees and provide the flexibility of adding to and varying them. Despite this physical separation between policy and contract, policies can bind the employer and employee as part of the employment contract.
The Supreme Court of New South Wales in Akmeemana v Murray recently considered the circumstances in which policies are incorporated into an employment contract. Akmeemana is one of few cases where the employer, not the employee, wanted a policy to have contractual force. In finding that the policies had no contractual force, Davies J in Akmeemana addresses four aspects relevant to the existing jurisprudence concerning policy and contract: incorporation of policy by reference; variation of policy; policy as implied term; and non-policy statements.
This article commences with a summary of the Akmeemana decision. I then engage in a brief review of the existing jurisprudence. This provides a useful context to the subsequent discussion of the four relevant aspects of the judgment. I conclude with a discussion of how Akmeemana fits within the existing jurisprudence and the lessons, some new and some repeated, it conveys to employers who wish to give contractual force to statements not expressed in the employment contract.
Keywords: policies and procedures, workplace policies, employment contract, Akmeemana v Murray
JEL Classification: J53, J59, K12, K31, K39
Suggested Citation: Suggested Citation