A White Water Raft Analogy
OThese magazine articles about legal topics help us get important messages out to our members, to help you help yourself by being proactive as a 'good employer' to establish and maintain constructive employment relationships with each of your staff.
However, sometimes, despite your best intentions, you could still end up with an employment 'problem' on your hands.
When an employment problem presents itself, as your legal advisors, our first task is to assess your litigation risk and advise you on a range of steps that you can take to minimise your risk.
An employment relationship is a two-way relationship between an employer and employee.
Let's use the analogy of a white water raft journeying down the river through the rapids.
The raft represents a particular project. The paddlers are the employees. The paddles, helmet, life jacket and other protective gear are essentials provided by the employer. Then there are extras provided by the employer, ranging from standard business-as usual stuff like paddle wax and nose and ear plugs; right through to equipment such as a satellite phone which is essential when navigating remote waterways. In some cases there are optional extras that could be provided by the paddler, like his designer gear and sunnies. The fuel (food and drink) is akin to remuneration, the bbq and beers at the end of the rafting trip represent their performance bonus incentive.
You've checked the raft, the paddlers are experienced (some more so than others) and they've all got all the gear. You know the route, you've researched the rapids, you know the terrain and the likely weather conditions - you've planned accordingly.
What could possibly go wrong?
Well, the river ebbs and flows, and the rapids are challenging at the best of time, and there's this saying "the best laid plans..."
Most of the time, no problems are encountered, or if there's a problem it's not a biggie. The river descends into rapids, but you planned for this all along. The raft overturns, but the design of the raft, the instructions of the leader and the collective skill and teamwork of the paddlers mean that it's easily righted.
But other times, unforeseen things happen, the raft is a reputable brand but doesn't live up to the manufacturer's warranty and doesn't easily right itself. Or perhaps things that should've been foreseen weren't, possibly because in the excitement of planning for the trip something essential was overlooked.
Maybe it's even more straightforward than that.
Maybe it's just nature - the course of the river has changed or there's a
storm on the horizon when sunny skies were forecast. Maybe one the raft leader is not as good as you thought, under pressure. Maybe one of the paddlers is not as experienced as he let on, and freezes when the raft overturns, even though you've practiced this on milder rapids.
Most of the time, the water simply gets more and more tumultuous the closer you get to the rapids.
So what does all this mean from an employment perspective?
The messages we always give to our members - it's all about planning and preparation and anticipating.
This leads me to consider the process we go through when we are assessing the risk and working out a tactical response.
I always ask myself what is the best outcome for you, and what can I do (within the bounds of the law) to achieve the desired outcome?
This involves probing the facts, getting a good understanding of the background of the working relationships and the workplace dynamics and the context of the incident or event that has triggered the problem.
You could say we act as the devil's advocate. Our job is to set out the pros and cons, we highlight the weaknesses in your case, so you understand the risks and potential consequences. If a settlement is on the cards, we make sure you understand the logic of settling and what it will involve. Most often, the cost is not just money, it's the time and stress involved, whether it be managing poor performance, undertaking investigations, initiating disciplinary proceedings or defending a personal grievance claim.
The hidden costs are often the most damaging for a business. Commonly whenever you have a poor performer or misconduct in the workplace, there's an impact on staff morale. This in turn manifests itself through a lack of teamwork, workplace tension and conflict, absenteeism and turnover. For most employers, there's the distraction and disruption to the business and there is invariably a real emotional toll as well.
We usually try to work out whether the relationship is salvageable and if so what's 'non-negotiable'.
If it's not salvageable, then it could be a case of developing an effective strategy to achieve an exit. Sometimes it could be on mutually agreed terms or following a fair performance management process or disciplinary proceedings.
Obviously, the sooner you consult with us, the sooner we can start devising a strategy. Get advice early on! It's much harder for us to achieve a good outcome for you if we're only consulted "after the horse has bolted".
I can't emphasise enough the importance of starting any employment relationship with a well-drafted, accurate and well aligned employment agreement that has been offered to, and signed, by the employee before employment commences. If you don't have a written agreement you are breaking the law and can face penalties up to $10,000 (for an individual) or $20,000 if the employer is a company).
It may sound cliched, but it's as important as laying solid foundations for your house. It satisfies your legal obligations to have a written agreement and enables a level of clarity for both parties to the relationship. It is always the first point of discussion and focus, when a grievance or dispute arises. If you don't have the paperwork in place, you are automatically on the back foot!
Secondly, if you're even slightly unsure of how to deal with an issue, get advice. Obviously we would prefer you use the services of our employment law team! But even if you don't, make sure you talk to someone who has experience specialising in employment law/HR. After all, we don't know what we don't know.
Time and time again, we hear about employers who end up in much more costly and unnecessary outcomes, solely because they didn't get advice from us early on.
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These articles and much more available in the latest Update - The Official OSEA Magazine