Our research into employment relations arises from conflict situations that end up in the ERA but most disputes are resolved peacefully, usually by employees putting their faith in the job market and eventually changing jobs, either internally or externally without considering mediation. Employees who put their faith in the employment dispute resolution industry might do so because their skills are not portable enough to let the market take care of their problem.
Unfortunately we don’t have a low-level dispute resolution service like ACAS. But occasionally mediation works out, particularly in the private sector where companies have an incentive to prevent a dispute from causing it reputational harm and productivity loss. That often ends with the employee leaving with an exit package to support a NDA.
In the public sector, settlement packages are often recorded on the accounts as payment of the departing employee’s salary up to a date that might be several months out, where the employee is not required to work. While future salary is subject to PAYE, compensation for hurt and humiliation is tax-free. Payment of some or all of the employee’s legal fees might be included and for the employer this is a tax deductible expense. So the employer’s aim is to pay as little as they think they can get away with, and what they do pay should be “tax savvy” but acceptable to the auditors.
Employees heading to mediation should assume that they will have to hit the ground running and secure another job as quickly as possible to avoid burning through that exit package. Long before getting to that stage however, upskilling to become more marketable to employers (both internal and external) is a good idea especially where the employee’s position is quite specialised, and there are limited opportunities for similar work within commuting distance.
Where internal support is not available, employees could consider taking evening classes or correspondence courses. That may arouse suspicion of an under the radar job search down the track but most managers know better than to make those suspicions known. Another option is to take secondary employment or start a business but it’s important to avoid the perception that such an activity interferes with the main job. In toxic work environments preservation of mana is more important than a lump sum payout especially in the current environment due to our observance of:
- Bogus, DARVO-driven workplace investigations
- Non-disparagement agreements signed off in mediation being non-binding on any employee (eg: line manager) who is not in mediation, leaving the employee exposed to the disparagement they thought they were going to be protected from
- Stripping of HR files down to the statutory minimum (wage and leave records) to defeat Privacy Act requests
- Employees routinely left alone in a separate room while counsel discuss their future and peruse documents the employee is not allowed to see (which are later surrendered)
- General indifference about the rights of the taxpayer and the way taxpayer money is spent, particularly in the public sector, as long as it gets past the auditor.
- Publication of names of parties to disputes in the ERA, which could affect the employee’s future employment opportunities as HR advisors usually Google shortlisted candidates
- A recent increase of ERA members warning employee litigants, who can only afford an advocate as opposed to an employment lawyer, that they are personally liable for the conduct of their advocate (while having little knowledge of previous conduct of, or professional vendettas against their advocate).
Who needs all that? That secondary job or correspondence course is looking good, isn’t it?
Managers looking to retain staff, despite conflict in the workplace, need to be aware of the law of supply and demand; if salary and working conditions are not competitive there will usually be signs of that before it's too late to avoid a costly staff replacement.