HR Advance from CCIWA

Businesses should have appropriate correspondence/documents in place in relation to their employees (and contractors).

‘Correspondence’ here refers to letters or other documentation sent to employees by employers, by any method of written communication (i.e. by ordinary mail, email, employee noticeboards etc).

All correspondence to employees and contractors should be supported by sound business practices and a set of sound workplace policies. For example, following the proper procedure in relation to attempting to improve the performance of an employee would involve corresponding with the employee in accordance with the policy in the workplace which deals with performance and counselling issues.

Documents found under the tab ‘Agreements and Contracts’ on this website, are sometimes the topic of correspondence with an employee. For example, if you and an employee have agreed to change a term in their contract of employment, the usual practice is to either:

The set of documents we have provided are a range of pro-forma documents which will bring to mind many issues which you need to consider when corresponding with an employee.

You may wish to use these documents for comparative purposes – where you already have a satisfactory correspondence regime in place, to check you have raised all relevant issues with the employee.

If you use these documents to assist you to draft correspondence you should identify exactly what you are trying to resolve or improve then choose the relevant document from the list provided in the left navigation bar. Save the document(s) to your computer and customise the document to suit your requirements.

It is extremely important that all correspondence with your employees is drafted with care. Correspondence can create legal issues and consequently your draft correspondence should be checked by experienced advisers familiar with the relevant legal aspects of the issues in question, if you have any concerns. All matters must be dealt with on the basis of their individual circumstances, and as such legal issues may arise, which will need to be addressed with your legal adviser. Your attention is drawn to the disclaimer included in the user agreement where it is noted that this website does not provide legal advice.

If you wish to provide your employee(s) with a statement or schedule of entitlements it is proposed they receive on termination of their employment, it is very important that you also ensure the quantum of the monetary entitlements you record in the statement or schedule are correct, before you provide these figures to the relevant employee(s). If you have over-calculated the entitlements owed and present this to the employee(s), you may in some circumstances, be bound to pay the additional amounts you have offered, despite the fact a miscalculation has occurred. Likewise, if you have under-calculated the entitlements owed, you may be in breach of a relevant industrial instrument or applicable legislation, which may lead to a financial penalty, damages and/or interest on the unpaid entitlements, being imposed. Calculations are often quite complex, particularly for long-serving employees, so it is recommended that you check them thoroughly. If you are unsure of the correct entitlements to offer or pay, or the relevant taxation treatment for each component, you should seek legal and relevant financial and taxation advice.

Correspondence is very important because every employment relationship has an individual history that often needs to be traced in order to find the rights and obligations the parties are working under.

If there is ever a dispute, proof of what was agreed or expressed is most conveniently managed via correspondence.

Managing employees is a challenging and demanding exercise. Employers and their HR staff have to be fair to the business and to the employees. A critical aspect of people management is the ability to put together accurate records of important events and incidents. This is where the advisability of written records comes to the fore.

Verbal (oral) warnings can sometimes be as effective as written ones, however, in order to be effective, a verbal warning must tell the employee what is expected of them, what were the employee's perceived shortcomings as well as the consequences of failing to improve or meet reasonable targets. The problem however with verbal warnings is that it is usually very difficult to prove at a later time what was said. As such, if you want to provide verbal warnings it is advisable:

Look at each of the major categories under the ‘Correspondence’ tab (Recruitment, EEO, OHS etc) and select the appropriate correspondence to suit the particular occasion required.

There are many letters and other correspondence on this website. The issues covered in the correspondence section range from pre-employment documentation to termination of employment correspondence. The categories are self-explanatory.

Appropriate correspondence to and employee can demonstrates an employer's attempts to comply with the law.

For example, it may allow an employer to take appropriate action against an employee who acts without regard for the safety of their fellow employees or the business, where appropriate correspondence evidences a series of warnings in relation to the employee’s performance and/or conduct.

Some simple guidelines can assist in reducing the risks arising from poor communications:

·Legal consequences: Any document written by an employer to an employee regarding the employee's work should be viewed as potentially contractual or 'having a legal consequence'. As this is the case, employers should always ask themselves if they would be concerned if the communications were to be produced in court. Could they substantiate and prove the truth of the communication? In addition, do they know how a court would characterise the communication in a legal sense? For example, an employer who writes to an employee stating that the employee's salary has been cut because of a failure to meet agreed targets should realise that there may be a need to prove such an assertion. Moreover, such a communication could be interpreted as a dismissal at the employer's initiative - as a critical aspect of the employee's employment contract is being altered unilaterally.

·Altering the contract: Any material alteration to the remuneration or conditions of an employment contract can have important legal consequences and should be treated accordingly. Employers should regard employment contracts as living relationships that need to be carefully managed. Unilateral variation of such arrangements has to be sanctioned by law, otherwise an aggrieved party may claim that an alteration is unfair. So, for example, employers can alter an employee's shift if the award or agreements prerequisites (as to notice) are met, but cannot reduce an employee's salary without the agreement of the employee in question, unless there is a legally sound provision in the relevant contract of employment.

·Getting it in writing: Employers should indicate, in writing, what actions they have taken in the employee’s interests . So, for example, employers who put training, counselling and other measures in place to assist employees improve their performance, should communicate this to the relevant employees, explaining why these measures have been taken.

The aim of the sample correspondence is to assist employers and managers in the preparation of correspondence to employees. It contains a range of pro-forma letters that can be adapted and used by employers and managers to send to employees when appropriate during the employment relationship.

Some areas of employer/employee relations, such as recruitment and termination of employment, do require the inclusion of particular elements in order to ensure compliance with legal principles. These requirements have been addressed in the samples given.

The sample letters contained on this website cannot cover the whole range of circumstances and issues that will arise between employers and employees. However, the pro-forma letters aim to give employers and managers an indication of the types of issues that should be addressed through correspondence, and what the letters should contain in a general sense.

The letters are a guide only, and will need to be tailored to the circumstances and needs of your business. (Within the letters some material will appear in italics which should be adapted to suit the individual circumstances of the situation.) If you have any doubts as to whether the correspondence you have drafted or amended (based on the pro-forma letters or otherwise) is correct, you should seek legal advice before forwarding the correspondence to the relevant employee. Remember, legal actions can arise from correspondence between parties to a contract of employment, so it is important your actions are lawful and enforceable, to ensure the best interests of your business are met.

All written communications to employees should be photocopied (or otherwise held as copies) and the copy retained by the employer in an appropriate place.

The employer should keep a file for each employee, and retain all correspondence to and from the employee in that file, as well as other documents relevant to the employee.

Where a written communication is addressed to all employees, or to all employees within a department, then the copy of the communication should be dated and stored in the file relevant to the communication, (e.g. a letter to all employees about an occupational health and safety requirement, may be retained in the business’s OHS correspondence file). If you only have a small workforce or the communication is only relevant to a small number of employees, you may wish to also include a copy of this correspondence in the relevant employees’ files. This will reduce the possibility of relevant evidence (in the form of these pieces of group correspondence), being overlooked at a time when they are required.

As legal proceedings can in some circumstances be commenced up to six years (and sometimes longer) from the date of the action in question, it is necessary to retain all employee files containing correspondence for at least that period of time. If the issues involve insurance (like workers compensation) then the correspondence should be kept as advised by your insurer.

How to use correspondence

Some simple guidelines