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Employers seeking to protect their assets through litigation

Mindset Group - Wednesday, December 09, 2009

Wednesday’s Australian Financial Review (Workspace) and Recruiter Daily, both reported a similar story about “Employers cracking down on restraint-of-trade breaches”.

The stories were the results of recently released information from Harmer Workplace Lawyers, which discussed a sharp rise in the number of legal cases filed over the past six months as companies seek to aggressively challenge claims from outgoing employees, and stop their client base from leaving with departing employees.

“Tougher economic conditions usually result in an increase in litigation, and that is exactly what we have seen recently. During the boom times, often employers had been willing to sign ‘blank cheques’ in order to settle claims quickly, or they tended to disregard breaches of restraint of trade conditions. Now, however, they appear to be prepared to litigate more vehemently,” said Shana Schreier-Joffe, Partner at Harmers Workplace Lawyers.

The articles also discussed the expectation that 2010 will bring in a raft of workplace legal challenges from two main sources:
  • employers trying to protect their client base as employees depart for new positions through enforcement contractual restraint-of-trade clauses, and 
  • employee instigated litigation for bullying, harassment and discrimination, as the new Fair Work Act comes into force from 1 January 2010.
To view the full Recruiter Daily article click here.

Psychological contract with workers key to success in era of change

Mindset Group - Tuesday, July 21, 2009

HR Daily discusses the importance of forming successful employer/employee relationships.  

In an era of constant change, an employer's capacity to adapt, succeed or survive hinges on the quality of employer/employee relationships, or the "psychological contract", according to a corporate psychologist.

"The psychological contract defines the 'essence' of the employment relationship," says Colin Beames in his book, Transforming Organisational Human Capital.

"It serves to bind individuals and organisations together and regulate their behaviour, making possible the achievement of organisational goals."

And it's a "powerful determinant", he says, of the behaviour and attitudes of workers.

"The quality of these employer/employee relationships... significantly impacts on both performance and retention."

Employees, Beames says, are more willing to accept change - such as downsizing, restructuring or the implementation of new initiatives - if their relationships with their employers are "healthy".

How the psychological contract is formed
Every relationship has a psychological contract, Beames says.

In business, he says, it can be defined as the set of expectations - based on stated or implied promises and understandings - that operate between employers and their staff. It is neither a written nor legal document, but "nevertheless 'real'".

The contract is established from the moment the organisation "promotes itself" (in a job advertisement, for instance) and develops progressively through every phase of the employment relationship, Beames says.

It is formed through what is written (from job ads through to HR policies), said or unsaid (by managers and colleagues), implied and observed, and is influenced by:

  • the salary package;
  • other financial and non-financial benefits;
  • job security and career development;
  • recognition of ontribution;
  • workplace safety;
  • the resources and training provided;
  • managerial support; and
  • promotion opportunities.

The "health" of the psychological contract, Beames says, depends on the employee's perception of the "delivery of the deal".

If they feel that their expectations aren't being met, he says, they're likely to become disengaged.

The cost of getting it wrong
Beames notes that while employers can increase the job satisfaction and engagement of workers by making and keeping promises, they can't be expected to fulfil every expectation.

There must be a "trade-off", or balance, he says, between meeting employee expectations and achieving business goals.

It is essential, therefore, that the psychological contract, or workforce strategy, is consciously linked to the business strategy, he says. A failure to do so can lead to excessive turnover.

For example, if the psychological contract places too much emphasis on remuneration based on short-term performance in an industry that relies on the development of long-term client relationships, those relationships will suffer and output will be restricted.

If employee salaries are stymied as a result, Beames says, talented workers are likely to leave and pursue other opportunities.

But even if workers manage to achieve outstanding results in these circumstances there is still a big chance they'll flee, he notes.

When a psychological contract is built almost entirely on short-term economic factors, he says, attachment tends to be tenuous.

Recruitment phase critical
The responsibility for managing the psychological contract is spread between executives, HR personnel and line managers, Beames says.

How they engage with the recruitment process, he says, is particularly critical.

"It is important that candidates are moved... from one part of the recruitment and selection process to the next, without them uncoupling or disengaging," he says.

Managers, he says, must maintain intermittent contact with recruits and provide them with regular debriefs and updates.

"The goal is to unite parties into a longer term relationship," he says. "However, the relationship is fragile in these early stages, and simple violations of the script or conventions are sufficient to terminate it."

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