One of the most important tasks that I face on a regular basis is the management of employees’ expectations.
A significant number of employees come to me with wildly unrealistic expectations for a resolution of their workplace issue(s). Their expectations appear to be founded on a number of common mistakes.
Unfair v unlawful
One of the primary reasons is, firstly, the failure to recognise the critical difference between what’s unfair and what’s unlawful. What’s unfair is unfair but what’s unlawful is actionable.
There is a world of difference between perceived unfairness and bias in the workplace and unlawful activity of the employer which will give rise to a cause of action and an actionable claim.
If you get into a dispute with the employer and go to battle on a sense of unfairness alone it will be like going to war with a gun that only fires blanks. You are bound to fail.
To succeed in the WRC or Labour Court or the Civil Courts you need to prove a breach of a statutory entitlement or a breach of contract or a failure by the employer to afford and recognise a constitutional right.
You cannot, for example, accuse an employer of “discrimination” or “harassment” without proving facts from which a reasonable inference of discrimination or harassment can be shown. Every allegation of a breach of your employment right will need to be proved in the appropriate forum.
Those who accuse must prove.
Another reason for unrealistic expectations is overreliance on workplace stress as a weapon in any dispute or legal action.
Any employee who goes to their GP and complains of feeling stress as a result of issues in the workplace. But the ordinary workplace stress, for which your GP will be willing to provide a medical certificate is not sufficient to ground a legal claim against the employer. You need much more than that to succeed with a personal injury claim for a negligently inflicted psychological injury.
Bullying and harassment
Bullying and harassment are complaints that I hear about regularly. But many employees view certain actions of the employer or colleagues as bullying behaviour when that is not the case.
If an employee is asked to account for his performance or conduct, or is unaccountably absent from the workplace, or if complaints or allegations have to be put to the employee, this is not bullying behaviour.
It may only be management or reasonable responses from the employer to discharge his duty of care to all employees in the workplace.
Bullying is repeated inappropriate behaviour that undermines the dignity of the employee. Asking an employee to explain why stock is missing, for example, is a legitimate request from the employer, not bullying.
Disciplinary procedure imperfections
Any employee who is subjected to a disciplinary procedure is going to feel a sense of grievance, especially if a sanction such as a written warning or dismissal is imposed. The employee will then subject the whole procedure to very close scrutiny and expect once he finds any imperfections or infirmities in that procedure that he will win any subsequent claim as a consequence.
That is not the case because perfection is not necessary from the employer’s perspective. Once the employer affords natural justice and fair procedures he will probably be in a good place to withstand any claims arising from it.
However, the employee can have the expectation that once she finds anything wrong at all she will win a claim.
This is not the case.
These three examples are only the tip of the iceberg but they are common scenarios which I experience frequently when advising employees.
I see it as part of my job to temper the expectations of employees who are anxious and enthusiastic to bring a claim, with bundles of misplaced confidence of succeeding, if the confidence is misplaced and there is little prospect of success.