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In part 1 of this series, the focus was on potential issues which could arise out of the terms of employment and terminating the employment relationship. In this part 2, we now shift the focus to potential issues arising from the conduct of persons in the workplace (from rank and file employees to managers and to management) and the importance of having properly and clearly drafted processes to address these issues.
Most employers are realistic enough to expect that it is inevitable for conflicts to arise in the workplace over a variety of matters – for example, clash of working styles, a disagreement over the direction of a project or even the perceived unfair treatment of an employee. However and despite knowing this, not every employer has in place a proper process to address these inevitable conflicts. Some even have the mentality of “we’ll deal with it when it arises”.
As a starting point, not every grievance or dispute in the workplace requires the company’s intervention and correctly so. Most minor grievances can actually be resolved through dialogue at the ground level between colleagues or with the facilitation of a line manager and should not incur the precious time of management for resolution.
For more serious allegations relating to things like sexual harassment, fraud etc and even for grievances that cannot be resolved, every company should have in place a grievance and investigation process. Such a process would outline clearly what are the steps to be taken in order for the company to investigate into the allegations and to address the complaint or grievance.
As far as possible, this process should state clearly things like what are the timelines involved at each step , the person responsible for administering the process and what the investigator is empowered to do at each step of the process. Otherwise and if the investigation is carried out in an ad-hoc fashion and by an untrained employee (the arrow usually lands somewhere in the HR team), issues and allegations of unfairness and arbitrary decision making may arise even if well or unintentioned. This also taints how employees see the process and affects their confidence in not just the process but the company as well.
Employers should be aware of the Tripartite Advisory on Managing Workplace Harassment and implement an anti-harassment framework to protect employees. In addition to having a robust framework in place, employers should also examine their company’s culture even if there are low reported occurrences of harassment. Could it be the case that there are no reports of harassment because people are afraid to do so (due to for example the perpetrator being a superior)? Or could it be that the employees who were being harassed were not even aware that what they were subject to was wrong due to a gap in understanding of what harassment is?
Failing to address such issues may have significant implications on an employer – apart from being in breach of the Tripartite Advisory and possibly being complicit to the harassment, the company may also experience high turnover rate and decreased productivity. Victims who feel unassisted by the company may also turn to the public forum though social media for example which would more likely than not result in adverse consequences to the company’s reputation.
When a conflict happens in the workplace, employees often look to their line manager to resolve the conflict. When the conflict involves more senior employees, members of management may be called in to mediate. These people, especially those new to the role, are often not trained in or prepared for conflict resolution even though it is inevitable that in the course of work they are expected to do so. It is also not uncommon for people in these positions to be familiar with their company’s own grievance and investigation process.
If such persons are not properly trained to resolve conflict, mediate or to conduct the grievance and investigation process, this not only makes them ineffective in facilitating resolution to the conflict but may also aggravate the conflict resulting in allegations being made against the company e.g. unfairness and biasness in the conduct of the process.
On the other hand, having employees who can effectively resolve conflicts in the workplace allows conflicts to be resolved without any lasting fallout between colleagues. This in the long run contributes to the productivity of the company and preserves the cohesiveness within and between different teams and departments within the company.
Generally, employers should seek the consent of the employee when proposing changes to the employment contract even if the changes are minor. Even if there is a clause allowing the employer to unilaterally amend the contract, such amendments would usually be limited to administrative or non-fundamental aspects of the employment contract. For example, an employer may choose to amend their medical claims policy without the need to seek the consent of the employee.
However, an amendment of the fundamental terms of the contract such as salary (especially a reduction) and scope of work would require the employee’s consent.
It is important for employers to align and set objective expectations and yardsticks of performance for their employees. This is beneficial to both sides as it is then clear how performance will be measured and assessed and if feedback on performance needs to be given, there is a basis for the employer to explain why the employee is for example underperforming.
A clear example of an objective yardstick of measurement would be sales targets for sales staff – if the staff exceeds the target e.g. $500,000 per annum, then it is clear that the staff has performed well. If the staff’s sales revenue falls below the target, then it is likewise clear to all that the staff did not perform as well and this is unlikely to be disputed. However, having broadly or poorly phrased performance metrics such as “must display leadership” or “must be able to command the room” is problematic both ways because this makes it both difficult for the employee to understand what he or she is expected to do, as well as for the employer to determine if the employee had met the expectation or not.
Without clear and objective standards of performance, it then becomes a challenge for an employer to for example put an employee on a performance improvement plan or to justify a poor annual appraisal. Should the employee challenge the performance grading given to him or her, the company may not have sufficient evidence to prove that the employee did not meet the required expectations. This is especially so if the alleged poor performance was never previously communicated to the employee.
Standards of performance should not only be objective but also applied consistently towards all employees. For example, two employees of the same seniority and role should have the exact same key performance indicators. Likewise, a company should not increase the sales targets of a better performing sales executive beyond that of his peers without a corresponding increase in incentives.
Whilst this appears to be a matter of common sense, employees need to be reminded of this. It is important for employees to be mindful of their surroundings as well as the feelings of fellow colleagues, especially colleagues of the opposite gender.
For example, cracking an inappropriate “dirty” joke in the office may be amusing to the intended listener, but may be seen as offensive to an unintended listener within earshot and make him or her feel uncomfortable. This may constitute harassment and a breach of the company’s policies.
It is also important for members of management to be aware of their boundaries, especially when interacting with junior employees. It is not uncommon for employees to feel harassed when a senior employee frequently asks personal questions or invites the person out to a meal and even if the employee agrees to the request, the employee may have done so purely out of compulsion for fear of offending the senior employee. Such actions may also constitute harassment and a breach of the company’s policies.
It is therefore useful for companies to explicitly make clear to employees what is considered acceptable and unacceptable behaviour. Whilst it is not possible for companies to address every type of conduct, having illustrations of acceptable and unacceptable conduct in the employee handbook for example will provide useful guidance to employees and also make the company’s position towards certain conduct clear.
Resolving conflicts in the workplace is certainly not an easy task, but doing so is significantly easier with a proper and clear process in place. When employees know what to expect of the process and that the process is being followed by the company, notions of arbitrariness and unfairness fall away and it becomes easier for the parties involved to accept the outcome even if it is not in their favour.
On the other hand, failing to have and follow a proper process in grievance and conflict resolution could have costly consequences for the company. For example, the aggrieved employee may choose to escalate the matter to the MOM or TAFEP, or even commence a lawsuit against the company.
Ultimately, employers are advised to seek proper legal advice in putting such processes and documentation together as the process is a bespoke one and customized to fit your organization’s needs. As mentioned in part 1, having poorly drafted or “cut and paste” type of documents will not only be of little use to the company, such documentation will only expose the company to the risk of a costly dispute.
If you require any assistance for your organization’s employment and HR documents / practices, you may contact:
Disclaimer: This update is intended to provide general information only, and is not and shall not be regarded as legal advice (and consequently relied or acted on) or create any relationship between the reader and Titanium Law Chambers LLC. Should you require any legal advice regarding your specific circumstances, kindly consult a qualified legal practitioner. Copyright in this publication is owned by Titanium Law Chambers LLC and may not be reproduced or transmitted in any form or in any way, in whole or in part, without the prior written approval of our firm.
© 2022 Titanium Law Chambers. All Rights Reserved.