MEDIATION - An effective tool in resolving conflicts in the workplace

Everyone wants a happy and positive working environment. When you have a positive working environment, it brings industrial harmony, it increases efficiency, and more importantly, it gives a sense of belonging and personal satisfaction. In other words, you look forward to coming in to work because you have soaked yourself in that positive environment that produces the “feel good” effect. On the flip side of the coin, when you have a conflict taking place in the workplace, it creates negativity in the working environment. Unless something is done quickly, this will snowball into a bigger issue in the workplace, thus reducing efficiency and productivity in the Company. When you have this sort of working environment, people tend to stay away from it. I guess you can say that they are “disassociating” themselves from such negativity, thus a solution must be found quickly to arrest this issue.

Mediation is becoming rather popular due to a number of reasons. Firstly, it is an informal process, it is confidential, it is less costly and the aim is to achieve a win-win situation which will leave both parties satisfied. In order to understand how Mediation can work effectively in resolving conflicts in the workplace, let us look at why conflict happens. Most of the time, conflict happens when parties stop communicating with each other. In a workplace, it could be between the boss and the worker. For example, say, John an employee who has been working for ten years suddenly starts showing up late for work. His boss, Bob, who is very strict on punctuality reprimanded John and refused to hear his excuses. Bob’s reasoning was that if you are intending to come in late for work, don’t bother coming in at all and waste precious hours at the Company’s expense. Bob felt that John should just take leave from work and sort out his personal issues and then return to work once that issue had been resolved. John felt Bob was arrogant and being unfair to him. To make matters worst, John and Bob were good friends but when it came to work, Bob had to put his friendship aside and do what he felt was right for the Company. Bob and John no longer talked to each other unless it was work related and it was absolutely necessary. Even then, the discussions were very formal without any hint of a friendly conversation. The situation had become rather awkward to the extent that both John and Bob started avoiding each other. When John sees Bob sitting in the café, John would go to another café or sit somewhere far away from Bob. As for Bob, unless it was necessary for him to talk to John, Bob would give his instructions to John via his secretary. Bob wants the Company to deal with John severely including dismissing John from the Company.

From the above example, you can see that there is a clear breakdown in the parties’ communication. Like most breakdown in communication, the main element that is preventing the parties from communicating is personal ego. In most of the Mediation seminars which I have conducted, I mentioned that there is an ego in all of us. If the person says he or she has no ego, that statement itself can be construed as an egoistic statement! In the above example, Bob felt that John owed him an apology because John had no excuse for being late to work and anything less than an apology would be deemed an insubordination in Bob’s book. On the other hand, John felt that Bob did not deserve an apology as John felt he did not commit a major disciplinary offence. John felt that Bob had failed to take into consideration that he had worked diligently for the Company for the past ten years and he had never been late to work until recently. John felt that Bob had been unreasonable, arrogant and a big bully. John felt that Bob was the one that should apologize to him and not the other way round.

Meanwhile, the senior management of the Company was aware of the conflict and realized that if they dismissed John, the Company could be liable for wrongful dismissal as the misconduct was not severe and no proper procedure of inquiry had been followed. At the same time, the management did not want to antagonize or offend Bob as Bob was an excellent manager and had done very well for the Company. The Company felt that this was more of a personal issue between John and Bob but nevertheless it was affecting the other workers and was creating an unhealthy environment in the workplace. So, the Company decided to engage a Mediator to resolve this conflict. A Mediator has to be someone who is neutral and independent, therefore the Company was not able to appoint one of its staff members to be the Mediator. With the consent of John, and Bob, the Company decided to refer the matter to a non-profit organization that provided Mediation services.

The Mediation organization will send a list of Mediators together with their bio data to the parties for selection. Once the parties have appointed a Mediator, they will sign a Mediation Agreement which contains essential terms and conditions such as confidentiality and non-disclosure. On the day of the Mediation, the Mediator will go through the usual Mediation protocol such as explaining what is Mediation; setting down the ground rules so that the Mediation is more focused; the importance of confidentiality so parties will be comfortable; and the Mediation process itself so that no one will be taken by surprise. The objective of the Mediation is not to determine who is right or wrong but rather it is to find ways to bring closure and to move forward.

At the Mediation, each party will give their views or their side of the story. In Mediation, we do not look at the positions of the parties but rather their needs. In other words, what can the Mediation do to meet their needs and to allow them to move forward in their lives. There is a misconception that a Mediator is like a referee in a ping-pong match where the Mediator merely acts as a middle person watching the process and conveying information from one party to the other back and forth. The Mediator’s job is certainly more than that. The Mediator must be able to elicit information from the parties to find out their real needs. Once the Mediator knows the real needs of the parties, then the Mediator can assist the parties to generate options that will be able to meet those needs. Mediation is just a process but to be able to mediate skillfully is an art. A skillful Mediator is one who can easily put the parties at ease, create rapport and get them to disclose their real needs and issues. I suppose one can say that the Mediator has to be an effective communicator and a “people person”. In other words, able to empathize and build trust with the parties.

In the above example, John and Bob will be able to talk to the Mediator in confidence and be allowed to vent their emotions. Once a person is able to release his or her emotions, the person will feel much better because the person knows that he or she has been heard and suddenly you don’t feel you are alone anymore. A skillful Mediator will use that to his or her advantage to assist the parties to resolve the conflict. Mediation is indeed an effective tool in resolving conflicts and disputes. Currently, most of the Mediation courses offered in Malaysia involve the teaching of Mediation protocols and procedure. I feel it would be more helpful if there are also courses on Mediation skills and techniques that will enhance the quality of Mediators in assisting the parties to resolve conflicts.

Setting the Right Work Culture

Now that you have hired the people that you want, how do you set the right work culture in your Company? First of all, is there such a thing as what is right or wrong in work culture? Personally, I am of the view that it depends on one’s perception as to what constitutes right or wrong. To me, setting the right work culture means motivating employees to enjoy their work so that they feel a sense of self satisfaction and pride in their work. If an employee has that feeling of self satisfaction and pride then you will have a Company with a very positive environment which will improve efficiency.

Story: A plumber who enjoys his work

When I was a student in Australia, I stayed off campus in a single storey house located in a beautiful town called Robina situated in the Gold Coast, Queensland. One day, there was a problem with a leaky tap in the house. I went to a D.I.Y. (Do It Yourself) shop to get some things that I felt could help me fix the problem. However, the situation became worse and I had no other alternative but to call a Plumber. The Plumber wasn’t able to come the same day but promised that he would drop by at 9.30 the next morning. One thing, I noticed in countries such as Australia, people tend to be punctual with appointments. It is considered rude, and rightly so I might add, if one does not show up at the appointed time.

The next morning at 9.30 am, someone rang the doorbell and there was the Plumber looking cheerful and friendly. In my heart, I was saying to myself who could be so cheerful and happy at this hour of the day. The Plumber wished me “Good morning” and asked me to show him the leaky tap. After examining the leaky tap, he excused himself and cheerfully walked back to his van to pick up some tools. He came back with his tools and started working on the leaky tap. While working, he was whistling to himself and seemed to be enjoying himself. I decided to sit down and have a chat with him while he was working. The Plumber was a professional as while chatting, his hands were working on the leaky tap and there was never a moment of pause from him.

Somehow, watching him work, that positive attitude and cheerfulness created by him rubbed off on me and I too began to whistle and felt friendly towards my classmates that afternoon. It was difficult to pinpoint what was the trigger that created this positive feeling. Perhaps some spiritual people would say it could be the positive aura and energy emitted by the Plumber. Well, I won’t say I doubt that but for certain, watching a person enjoying his work and obviously being proud of the service that he was giving made my day. Perhaps, I was inspired by the Plumber. How much did it cost me then? In 1992, for less than an hour of plumbing work it came to AUD$90.00 for labour, parts and inspiration!

As you can see from the above, even though the incident took place almost 20 years ago the Plumber created a lasting impression on me. A lasting impression can be good or not so good. Therefore, it is important that you ensure your employees create the former and not the latter. To illustrate, I am going to share with you a story that shows the difference between a good and not so good impression.

Story: Good v Not So Good Impression

In 2010, my family and I visited Hong Kong. Since it was my children’s first visit to Hong Kong, I wanted to make it a memorable visit for them. Being the school holidays, I expected the hotel rates to shoot up during this holiday season. I asked a friend in a travel agency to assist me in booking 2 rooms. My friend recommended we take a family suite rather than booking 2 rooms as it would be relatively cheaper. He recommended YMCA Salisbury Hotel in Kowloon. A family suite is quite similar to a one bedroom studio apartment. It has a bedroom and a small living room. In the living room, there is a sofa set which can be converted into a bed.

To be honest, I had not been to a YMCA hotel prior to this, so I really did not know what to expect. Upon stepping into the YMCA Salisbury Hotel after a 3 ½ hours flight from Kuala Lumpur, I was pleasantly surprised. Upon seeing the car stop in front of the hotel, the porter came and collected our bags and I was promptly shown to the hotel reception. The checking in was a breeze which took less than 10 minutes. I also noticed that there were a couple of men in grey suits whom I assumed were floor supervisors. I did notice later that they were there not only to assist the guests but also to guide the students. Yes, there was a school located in the YMCA hotel itself!

What amazed me most was the floor supervisors’ attentiveness. One morning, I was sitting at the hotel lobby waiting for the tour bus when a person next to me inadvertently left a small plastic bag. Immediately, the floor supervisor noticed that and quickly took the small plastic bag and ran after the person to return the bag. Then there was another incident where I saw the floor supervisor take a small tissue paper from his suit pocket. Thinking that he was going to sneeze, I set my sight on other things. Suddenly, he came towards my direction to pick up some small debris from the seat next to me with the small tissue. This may be small things but if you put yourself in the employee’s position, would you bother to do small things like picking up some small debris? Further, I am not even sure if that was part of his job? A person who has no pride in his or her work would probably just ignore small things like that. I also noticed that the floor supervisor was always on the move, walking up and down paying close attention to the surroundings.

When we checked into the room, I called housekeeping for some extra towels and to convert the sofa to a bed. My requests were attended to promptly by the ever smiling housekeeping staff. For a reasonably priced hotel, I thought the service was first class and impressive.

Let me now compare with a 4 star hotel which my family and I stayed at not too long ago. I have been their Premier Club member for close to 10 years now. The service there used to be very good and the Premier Club Manager knew me well. All I needed to do was to send her a text message and she would reply with the room booking and confirmation number. I was there one afternoon at 2.45 pm to check in. There were a few guests in front of me who wanted to check in. I couldn’t help but overhear that they had to wait for an hour before the rooms were ready. When it came to my turn, the person attending to me noticed that I was a Premier Club member and a regular guest based on their records. The person informed me that the room was ready but I needed to wait for 15 minutes as the supervisor had to check the room before it could be released. That sounded professional to me. The hotel receptionist informed me that she would call me once the room was ready. I told her I would be at the coffee house and she could reach me there.

After waiting for half and hour, I decided to go to the reception area. The reception area was quiet, so I asked the hotel receptionist if my room was ready and she said “Yes”. There was no apology from her for keeping the guest waiting and neither was there an apology for not informing the guest when the room was ready as she had promised earlier. I didn’t want to make a fuss, so I just thanked her and took the key card from her. My wife and I were carrying a few bags between us. There were a number of porters around but no one offered any help. They all looked bored and had that “I couldn’t care less” sort of look unlike the porters I encountered at the YMCA Salisbury Hotel.

When we arrived in our room which was a 2 bedroom family suite, we noticed that housekeeping had not replenished the complimentary mineral water bottles. We called the housekeeping and informed them. Later, we found that the air conditioning was not working in the master bedroom. Again, we called the housekeeping and informed them. When my wife wanted to take a shower, she discovered the shower wasn’t working. It made me wonder whether the supervisor had actually checked the room when we were kept waiting for more than half an hour. It took quite a while before someone came and got it fixed but there was still no sign of the mineral water bottles. We made a further 3 calls but no one came. After that, we didn’t bother anymore as we were only staying for a night.

When I went to check out the next day, I informed the person at the hotel front desk about my concerns but he didn’t seem to care. The service I got from this hotel didn’t give me a good impression. It definitely made me consider whether I ought to renew my membership when it expires. At the same time, it also made me wonder what happened to this hotel which once had very good service. Somehow the staff members seemed to be tired and demoralized. Was the Company doing anything about it? Did the Company notice it? Did the Company care? These are questions that ought to be addressed by the Company before it starts losing its customers.

It is important for the Employer to give their employees a sense of belonging. Belonging means feeling wanted and cared for by the Employer. I am of the view that the Employer should praise their employees if they have done well. Show genuine concern for their welfare and be alert. In other words, be observant and take notice if you feel that something is not right about the Employee. An example would be a sudden behaviour change from the Employee, something must be bothering the person that results in such a change in his or her behaviour. It is like tending to a young child. Whenever you notice an active child suddenly becoming passive, tired or cranky, make sure you check on the child to see what is bothering him or her.

Similar to a young child, an Employer should praise the employees when they have done well. I am also of the view that it is very important to let the employees know that they are appreciated and play a very essential and important role in the Company regardless of their position. I am not saying that an employee is like a child but far from it. An Employer and an employee’s relationship should be close-knit like a family. It may sound like a cliché but since you have heard it many times, you know it , so let’s do it!

As an Employer, I am sure you will not hire anyone from the street just for the heck of it. There must be a reason why you need the person and you are prepared to pay a salary to that person. Therefore, treat the Employee as an important person and an integral part of the functioning of your Company. A person will always feel good about himself or herself whenever he or she is accepted, treated well and knows that he or she is an important part of the Company. To me, that is the real meaning of “belonging”.

Once an employee feels that the Company genuinely cares for him or her, the employee will give his or her best. Why? Well, you can call it “karma” but to me, when someone treats me well, I will try my best not to disappoint the person and the trust that the person has placed in me. I will give my very best to the task assigned to me.

Story: An example where the employees are proud of the Company

A few years ago, a friend of mine applied for a position with a multi-national oil Company. He knew that he had to compete with a number of other applicants. Fortunately for him, a reply came for him to attend an interview with the Company. He went there early and had to obtain an access card from the Security/Reception desk. The person attending to the Security/Reception desk asked him the purpose of his visit. He replied that he was attending an interview. The stern security personnel then broke into a smile and said that he had been working there for more than 10 years and if my friend was accepted into the Company, my friend would not regret it. The security personnel went on to say that the Company treated him very well and he enjoyed working in the Company.

My friend found that rather reassuring and somehow could feel that the security personnel was sincere in what he said. My friend took the elevator to the interviewing floor. My friend couldn’t find the interview room and asked one of the staff on the floor. The staff was helpful and informed my friend that he remembered when he came for an interview some 5 years ago. He shared some stories about the Company and all of them were positive. By now, my friend was feeling quite comfortable and feeling rather assured that if successful, he was going to be with this Company for a long time or perhaps even for the rest of his working life.

Just when he thought he had heard enough, suddenly there was an elderly cleaner who came into the room to tidy up the waiting area. She smiled at my friend and wished him “Good morning”. My friend returned the greeting and the lady asked whether my friend was a candidate for the job interview. My friend replied “Yes” and asked the lady how long she has been working in the Company? She replied more than 25 years. She informed that most of the employees in the Company were long serving staff. Like the security personnel and the office staff, she was full of praise for the Company.

Eventually my friend went in for the interview and got the job. In less than 3 years due to his good work performance, the Company sent him overseas to a new posting.

I found it rather fascinating that all the employees of the Company from the security personnel to the cleaner had one thing in common and that is pride and loyalty to the Company. There must be an underlying reason why they have worked for the Company for so many years. Was it because of the good salary package? Perhaps, but I know of some people who, inspite of having a good salary package, are not happy with their employers. I believe that the difference here is that the Company cares and shows it. From what I can observe, the Company recognizes the achievement and good performance of its employees. As stated at the beginning of this chapter, all of us need some praise and some appreciation from time to time. The Company must have recognized that and given due appreciation to its staff by either promoting them or in some other ways recognizing the employees’ achievement. The Company certainly set the right work culture for its employees.

Tips on Drafting a Contract of Employment - Part 2

Story: My aunt and her maid

My aunt once had a “live in” maid working in her house. A “live in” maid is one that stays in the house or is commonly known as a “full time maid”. On the first day when the maid reported for work, my aunt showed the maid around the house and went through with her the housework that the maid was to carry out. My aunt and her family looked after the maid very well, buying her new clothes and giving her salary in advance so that she could send the money to her family. To be honest, there was not very much work for the maid to do in the house as my aunt lived in a terrace house with my uncle and my cousin who was in his 30s then. By the afternoon, the maid would be watching television with the family, prepare an early dinner and then be off to bed. Every Sunday, the maid was given a day off. My cousin would give her some money (which was not part of the contract) for her to spend on her day off.

One day, my aunt wanted to clear some old things from the closet in the house. As my aunt was in her early 70s then, she asked the maid to assist her. However, the maid just stood and watched. The maid replied that clearing the closet was not her duty. In other words, it was not her job to clear the closet. My aunt was confused and asked her to explain. The maid told my aunt that clearing the closet was not mentioned to her as part of her duties on the first day when she reported for work. My aunt informed the maid that she might not have mentioned about clearing the closet to the maid as this was not something that was required to be done everyday but it was part of the housework to be carried out once in a long while.

So, we have a dilemma here. On the one hand, you have my aunt who felt that clearing the closet was part of the maid’s job and on the other hand, we have the maid who felt that clearing the closet was something extraordinary and out of her normal duties. Well, if you looked at it, both may be correct. My aunt may not have informed or made clear to the maid that from to time the maid would be required to do some work relating to the house which was not routine (ie: clearing the closet) which she deemed as part of the maid’s duties. On the other hand, the maid felt that since this was not related to her as part of her duties on the first day, she considered this as something additional. Needless to say, my aunt paid the maid extra for clearing the closet which I know that she would have done anyway regardless of whether it was part of the maid’s duties or not.

This misunderstanding could have been avoided if my aunt had informed the maid that she would have to perform housework which was not routine but was related to the house as may be directed from time to time. Since there was no written contract, my aunt should have put this clearly to the maid on the first day when the maid reported for work. As explained earlier, a contract of employment is negotiable. If the maid was not happy at that point of time, she could have raised that with my aunt. Therefore, when you have a “catch all” clause in the Contract of Service, ensure that the employee understands what it means and the kind of work that the employer may require from time to time.

(b) Medical benefits

Larger companies will have group medical health insurance that will cover their employees. However, smaller companies may not have such a benefit for their employees. As a matter of fact, some smaller companies may not even have a panel of clinics that the employee may visit in the event that the employee is sick. Another issue that a small company may have is the limit of the medical claim. A small company may be worried that the medical claim by the employees may amount to more than what the Employer can afford. Therefore, you may want to place a limit on the medical claim by the employees after taking into consideration the Employer’s financial strength. You may want to place a monetary limit for outpatient treatment and inpatient treatment (if you are covering hospitalisation as well). In the Contract of Service, you may want to insert a clause along this line:-

“Basic medical expenses for medical treatment received by you up to a maximum of $.....(state the amount) per calendar year shall be borne by the firm. Until such time when the firm has its nominated panel of clinics, you may seek medical treatment from a clinic of your choice and the firm shall reimburse you for the basic medical expenses incurred.”

(c) Leave

An employee is entitled to a number of days of leave from work. If there is a statutory requirement on the number of leave that must be granted to an employee then obviously you must have a figure not lower than the minimum in the Contract of Service.

An important point to note is that you need to state clearly in your Contract of Service whether the leave which is not utilised by the employee can be brought forward to the following year. If you allow the employee to carry forward the leave then there ought to be a maximum number of days of leave that the employee may carry forward.

Another issue is what happens when the employee resigns having accumulated many days of unused leave. As an Employer, you may have to compensate the employee with the number of days of leave that the employee has not taken. I know of a company where an employee hardly took any leave from work. When the employee decided to resign, the employee gave notice of resignation but did not state that she was intending to claim for the leave which was not taken. A day before the resignation was to take effect, the employee listed the number of days of leave not taken by her and submitted it to the Accounts Department. Obviously the boss was taken aback but had no alternative but to compensate the employee as the Contract of Service was silent on leave not taken. If a clause is inserted to state that all leave entitlement is to be utilised before the resignation is to take effect then the company could have avoided paying the hefty compensation.

(d) Notice of Resignation

Most companies would normally require a minimum of one month notice before the resignation takes effect. There are also instances where companies require 6 months notice. One of the reasons for a longer notice period is because the duties performed by the employee may be complicated and require a longer time for a replacement to grasp. There are also instances, though it is not common, where the Contract of Service states that in the event the Employer requires the employee to come back to complete the work either on a weekend or after hours, the employee is required to comply and will be given a pro-rated payment based on the last drawn salary. This normally takes place where the employee is carrying out duties in a project or specific assignment. I understand that some law firms have this clause in their Contract of Employment. If you look at it carefully, you may ask whether this clause is legally enforceable? In other words, does a former Employer have the right to sue a former Employee for specific performance (ie: to make the former employee comply with the Contract of Employment)? I believe that when the employee has resigned, the Contract of Employment would cease to exist so there would no longer be a basis for such an action. Other legal minds may have a different view on this matter.

(e) Retirement age

Nowadays, it may no longer be an issue as the retirement age is clearly stated in most Contracts of Employment. However, for some of the older contracts, the retirement age may not be stated. This could be due to the practice in those days. It could be an understanding between the employers and the employees that the employees in the private sector will have the same retirement age as those working in the government sector. Therefore, there was no necessity to state the retirement age. However, in today’s litigious world and to avoid any ambiguity, it is strongly recommended that you state the retirement age in your Contract of Service.

The above tips on drafting the Contract of Employment are just some guidelines to assist the Employer, especially those who are operating on a small scale to have an idea of some of the essential clauses to be inserted in the Contract. By no means are those clauses meant to be comprehensive. At the end of the day, both parties must be comfortable with the Contract to achieve balance and harmony in the workplace.

Tips on Drafting a Contract of Employment - Part I

Now that the interview is over and you have selected the candidate, it is now time to draft the Contract of Employment. Remember, just because a candidate has been selected for the job does not necessarily mean that the candidate has accepted the offer. It will all be subject to the Contract of Employment.

Some Contracts of Employment are so comprehensive that the successful candidate will have to take some time to go through the terms and conditions. I know of a person who had to engage a lawyer to go through his Contract of Employment as the job carried a very heavy responsibility but at the same time had a very good salary package. The terms and conditions in a Contract of Employment are negotiable. However, it is up to the individual if he or she wishes to negotiate with the Employer. There are instances where a person just accepts the Contract of Employment as given. This may be due to the fact that the person has been unemployed for quite some time and he or she is just thankful that he or she has finally secured a job. I believe that the employer has a duty to go through the Contract of Employment with the successful candidate to ensure that there is no misunderstanding on the salary, benefits and duties expected of the employee. We do not want this to be an obstacle to the Company’s productivity.

Types of Contract

Basically, there are 2 types of contract. One is the Contract for Service while the other is the Contract of Service. We will briefly discuss these 2 types of contract.

1. Contract for Service

A Contract for Service is when a person has been engaged to carry out a specific task for a certain period of time or until the task is completed. An employer and employee relationship does not exist in a Contract for Service. The person or entity that is entering into the contract is an independent contractor. An independent contractor is required to carry out the duties as specified in the Contract for Service. An independent contractor does not submit itself fully to the Company’s directions or orders as an employee would in an employer and employee relationship. In other words, the company’s requirement is for the independent contractor to achieve and obtain the end result rather than telling or directing the independent contractor how to go about doing the job.

Story: Producing a Play called “The Proposal”

Sometime in 1992, I was asked to produce a play called “The Proposal” at my university in Australia. The director of the Play was a former Malaysian who was a well known actor, director and personality in the arts and theatres in Kuala Lumpur back in the 70s and 80s. At that time he was living in Australia. He asked if I would be kind enough to produce the Play for him. I had never produced a play so I decided to take up the challenge and agreed.

We had an audition where we chose the actors and actresses for the Play. The actors and actresses were paid next to nothing because the Play was produced to raise funds for the university’s drama club. Nevertheless, it was all done professionally as if the Play was done on a big commercial scale. We even recruited personnel to help us to sell tickets, put up the posters and usher. They were volunteers but everyone took their jobs seriously.

I was politely informed by the director of the Play of some of the ground rules as to my role as the Producer. The director informed me that I was not to interfere with the artistic and acting work of the actors and actresses. By all means, I was allowed to watch but I was not to tell them what to do. Fair enough, I thought. I was also informed that I was not to interfere with the preparation of the props for the Play. I was to get the props done but I was not to tell the carpenters or helpers how to do their job. I was also not allowed to tell the stage hands where and when to place the props as that was the job of the director. Looking back, if this had been a company, or in this case a production company, the actors, actresses, carpenters, helpers and director would all be independent contractors. All of them were given specific roles (forgive me for the pun!) to play and there was to be no interference by the Producer as to how they were to carry out their duties.

The Play was a success. After it was completed, the stage hands and helpers had to rush off to attend classes (after all we were all university students!). They were to come back later to remove the props. However, we were informed by the university staff that they needed the lecture hall where the Play was staged in 15 minutes as there was going to be a lecture given there. There was no one to help us. The director of the Play and I started removing the props on our own. The actors and actresses who were there did not lift a finger to help us. The only reason I could think of was that probably the actors and actresses felt that it was not their job to remove the props, so why should they bother?

What I observed from this experience is this, you cannot expect an independent contractor (in this case the actors, etc) to do more than their specific duties. Of course, one can always argue that they ought to go beyond their specific duties as it is done for the good of the Company or in our case, for the good of the Play. But if you put yourself in their shoes, why should they? The Play was completed and they were not permanent actors with the production company, so why should they do more than what was expected of them? After all, they were independent contractors and they had completed their jobs, therefore it was time to move on!

The Contract for Service is very specific. As an employer you need to be precise about the duties of the independent contractor. Unlike a permanent contract of employment, a Contract for Service does not have a saving clause in the contract that says “….and any other duties which the employer may instruct from time to time”. If the actors were permanent employees and we had this clause in the contract, we could have gotten the actors to assist us in removing the props.

(i) Some drafting tips on Contract for Service

(a) Be specific about the work or duties of the independent contractor

As stated earlier because the person is an independent contractor, the duties or work in the contact for service must be specific. How do you determine the duties of the independent contractor? The first thing is to ask ourselves what is our objective in engaging this person? In other words, what do we want to achieve by engaging this independent contractor?

An example would be if you need the independent contractor to set up the computer system in your office, then you need to list out the list of things (ie: the details) that the independent contractor must achieve. For example, you need the computer network to be shared by everyone in the office, setting up a server, setting up of e-mail accounts, etc. You need to go through the details carefully to avoid any misunderstanding with the independent contractor in carrying out his or her work. An example of a misunderstanding here would be if you want the independent contractor to set up and install a computer accounting software for the company, this would be something different from the intended contract. The independent contractor may say this is not his or her agreed scope of work and you may need to pay extra for this additional work. Remember, your authority over the independent contractor is limited. Therefore, you cannot instruct him or her to “do any other work as may be assigned from time to time”. Some employers may say that they will make it general in the contract for service such as “designing and installing a computer system in the office”. Therefore, this hopefully will cover everything under the sun. Will it? I do not think so. A clause of this nature will be too ambiguous and the parties will be arguing for a long time and it will not benefit anyone. Therefore, I am of the view that you need to be specific when drafting the scope of work or duties.

(b) Duration of the Contract for Service

The duration is a fixed term. The Contract may expire at a given duration or when the work is completed. A Contract for Service is not renewable. If you need to have the independent contractor continue working on a certain project, you will need to draw up a new Contract for Service. However, you should also be aware that if you draw up a Contract for Service consecutively one after the other upon the expiration, this may be construed as permanent employment by the authorities.

(c) Payment

When it comes to Contract for Service, I prefer to use the word payment rather than salary. At the end of the day, that will be what the independent contractor will be receiving - payment rather than salary. However, there is nothing to stop you from paying the independent contractor in stages. However, make sure the mode of payment is stated and agreed upon in the contract. Payments in stages are normally marked by milestones. For example, when setting up the computer network, a payment will be made and then setting up the server will entitle the contractor to another payment and so on.

(d) Statutory or required contributions

In Malaysia, there are statutory contributions such as EPF and SOCSO for employees of a company that must be paid every month. However, in a Contract for Service, the independent contractor is responsible for all payments required by the statutory bodies in respect of his or her services to the company or whoever engaged them.

(e) Form of Contract for Service

There are companies that prepare a Contract for Service on their letterheads. I am of the view that a Contract for Service would be more appropriate if it is done in a form of an Agreement like we see in a tenancy agreement where the parties and the terms and conditions are clearly stated. If it is prepared on a company’s letterhead, the contract may be construed as a Contract of Service.

2. Contract of Service

Contract of Service is used when you are employing a person in your company to perform duties in the company. Unlike a Contract for Service, an employer will have authority over the employee in performing his or her duties in the company. The employer can direct the employee to perform the duties as the employer deems fit.

(i) Some tips on drafting a Contract of Service

(a) Inserting the “catch all” clause in the Scope of Work or duties

Unlike in a Contract for Service, an employer can insert a “catch all” clause in the Contract of Service. Usually, an employer will list out the duties of the employee and then end it with the “catch all” clause that states “….and any other work or duties that may be assigned or instructed by the Employer from time to time”. For example, an Accounts Clerk is hired to perform duties relating to accounting work in the office but may be asked or directed by the Employer to perform administrative duties in the office as well from time to time. Whatever work given by the Employer under the “catch all” must be reasonable and related to the work in the office. For example, it would be unreasonable to get the Account’s Clerk to wash the director’s car and then to pick up his or her children from school! I am of the view that an Employee has the right to reject the work or duty assigned by the Employer if it is deemed degrading or has no bearing or relation whatsoever to the work or duties of the Employee in the office or in the Company.

INTERVIEWING TECHNIQUES

Now that you have the potential candidates, it is time for the interview. To me, the interview sets out to do the following things:-
(i) It is to assess the candidate. In other words, meeting the person and seeing whether the person’s character will fit into the organization. It is always nice to have a pleasant and cheerful person around. It "brightens" up the office and brings a lot of positive energy (yes, I do believe in feng-shui!) to the office. Sometimes, all it takes is just for one person to create disharmony in the office. This will become a real challenge when one staff member after another starts leaving because they can’t work with that one person.
(ii) It is to see how the person interacts. You can tell a lot by just seeing how the candidates answer the questions. I have seen candidates talking non-stop as if they have not been given a chance to speak for a long time. Some candidates like to boast about his or her past achievements. I have also seen candidates bad mouthing their ex-bosses or criticizing their former employers. To me, these candidates are definitely out of my radar screen. Any candidate that speaks negatively about their former employers or bosses will have the potential to say the same about you or your company when he or she leaves.

HOW DO I START THE INTERVIEW?
For starters, you may want the candidate to fill-up the application form. Unless, your organization is a large organization or the job requires special skill, I am of the view that the application form should be short and simple. As most of the applicants will have their resume prepared, there is no need for duplicity in the application form.
There are a number of ways to begin an interview. Some interviewers like the candidate to speak first to see how much the candidate will reveal of himself or herself. On the other hand, there are interviewers who like to begin by introducing the candidate to the company. In other words, what the company does and hopes to achieve. By laying the foundation, the interview proper will then begin. Personally, I prefer the interviewer to introduce the company to the candidate before the candidate speaks about himself or herself. Some people would say that is not a good idea as this will give the candidate an opportunity to provide tailored answers, giving the impression that they are suitable for the position by highlighting their skills and qualities according to the Company’s requirements. I would strongly disagree with such comments. If anything, the candidate will be in a better position to know what is expected of them.

TIPS ON SCREENING JOB APPLICATIONS

With e-mail facilities today, employers frequently receive resumes that come either as an attachment or sometimes the resume will be in the e-mail itself from the applicants. Pouring through the large number of resumes may be quite laborious work. As for me, I will normally "filter" or "screen" the applications sent by e-mail using the following indicators:-
(i) Whether the e-mail was directed to me as an employer or was the e-mail directed to a number of other employers as well?
If the e-mail was directed to a number of other employers, you will be certain that I will not be calling the person for an interview. It doesn’t fare well for the applicant as employers will find this quite rude. Applying for a job is something quite confidential and to be treated seriously, an employee should take the time to send his or her application separately to the individual employer. Some applicants may call it saving time and multi-tasking but I will simply call it pure laziness!
(ii) Whether there is any covering letter accompanying the resume sent by e-mail?
To me, it doesn’t matter if the letter comes separately or in the e-mail itself. What is important is that there should be a covering letter. A good covering letter should have the full name of the prospective employer and the contact details (if known). As an employer, this will indicate to me that the prospective employee is courteous and has taken the application seriously. Sometimes, I do get a covering letter applying for a job in the e-mail saying "Hi there" or worse "Hey there" as the covering letter. It amuses me to see such a covering letter. It makes one wonder, how can the employer treat such an applicant seriously? I must say, so far all of the candidates who have written nice covering letters and were interviewed by me have left a positive impression on me.
Story: The radiographer that came knocking
A few years ago, we were looking for a clerk to assist in administrative work. We advertised the position online in the internet. At that time, we didn’t realise that there was a long stretch of public holidays when the online advertisement came out. To advertise during that period was not a good idea as most people were away and might not be checking the postings. So, we decided to put out another advertisement. This time, for some reason, instead of advertising the position of a "Clerk", we wrote "Administrative Assistant". Both positions came with the same duties and salary. Only the name of the position was different.
Amongst the applications that came in was an e-mail from an ex-radiographer together with an attached resume. The covering letter was well written. It contained our firm’s name, address and name of the contact person. It also explained why she decided to leave her job as a radiographer and apply for the job of Administrative Assistant. By reading the resume and the covering letter, one could feel that the applicant was responsible, sincere and had initiative. The applicant’s resume and covering letter certainly warranted an interview with us. However, what impressed me most was that the applicant made reference to the 2 postings we had online. The applicant mentioned that she noted there were 2 postings online from our firm and that she wished to apply for either one of them as both came with similar duties (actually, exactly the same!). To me, it showed the applicant was observant, rational and independent thinking. Some applicants didn’t even realise that we had 2 similar postings online. We received 2 identical resumes from the same applicant in our inbox. It became even more remarkable when the e-mail came in with just the subject changed from "Clerk" to "Administrative Assistant" and without any covering letter. Well, back to the story of the radiographer, she did come for an interview and she got the job. Way to go, Madeleine!
When screening job applications or resumes, I tend to look at the number of years a person has spent in his or her previous employment. For me, if the person spent less than 2 years in his or her previous job, I will make a note of that. If the applicant is invited to attend an interview, I will pose a question to the applicant to gather more information as to the reason for the short duration of his or her last employment.
However, we have to be careful not to jump to any conclusions just because a person has spent less than 2 years in his or her previous employment. I have a former classmate who worked for a company for 14 years before he decided to leave to "explore other opportunities in the world". The second job was with a well known accounting firm, where he worked for hardly a month after which he had to resign. Well, in his case, he had a valid reason as his mother was taken seriously ill and being the only child and unmarried as well, he had to take time off to look after his mother. When his mother finally recovered after close to a year from his resignation, he anxiously looked for a job. It was understandable as a lot of his savings had been used to pay for his mother’s medical bills. He had a difficult time securing an interview for a number of reasons but perhaps the obvious one was that he had been unemployed or jobless for close to a year. He was reluctant to list the well known accounting firm as his last employer for fear his prospective employers might think that he was fired from his last job given the short duration that he was there. He came to seek an opinion from me on his resume. I suggested to him to include the well known accounting firm in his resume despite him being there for only one month and to include a short written explanation as to why he had to leave the firm’s employ as most prospective employers would want to know. The prospective employers would then be aware that he wasn’t sacked but instead had to leave to undertake a bigger responsibility.
Story: An applicant with a colourful job history
I had an applicant once who listed his previous jobs as a waiter, a cook, a bus driver, a temporary teacher, a clerk and subsequently, an administrative officer. Normally, I would put the resume and application aside if I see any evidence that the person lacks focus. However, in this case, my curiosity got the better of me and I just had to invite this applicant for an interview. During the interview, I was quite impressed with the applicant. He had a charming smile and an answer to every question asked. This could be due to his employment background - being exposed to various types of jobs from one end of the spectrum to the other. I must say he could handle people rather well. However, one thing I could safely conclude from the interview was that the applicant was not suitable for a desk job as he liked to move around and talk to people. I was being honest and I told him just that. I even hinted to him that he would make an excellent sales person. He was quite excited when I told him about his strength which unfortunately did not fit in with our organization. He left feeling happy and I am sure it won’t be long before he adds sales executive as one his jobs in his next resume!

USEFUL TIPS ON JOB ADVERTISEMENT

What should I put in the advertisement? For starters, how about inserting the job description and the job requirements?

(i) Job description
It is vital that you state as clearly as possible what the job is all about. If the position is for an accounts clerk, then state that position. If the position is for a general worker (something which we don’t see much of nowadays in the advertisements) then you might want to give a little more detail as to what the job entails, otherwise you will get a whole load of job applications where most of the applications will be irrelevant to your requirements.

Story: The "over applied" position of Administrative Assistant
Some years ago, my firm was looking for an Administrative Assistant. Being prudent with our spending, we decided to post the advertisement online through the internet. We placed a general ad stating "Firm requires an Administrative Assistant, 5 days week and very near to public transportation". Over a period of 3 days, my inbox was filled with hundreds of resumes, some with photographs. I had all kinds of applicants applying for the job. Some had really colourful backgrounds including a masseuse who used to work at a spa!

To avoid the same mistake, you will need to put in some sort of a "filtering system" where only relevant applicants will apply. This is where stating the job requirements come in.

(ii) Job requirements
To narrow or to filter the applicants, be clear with your job requirements. If it is an accounting job and the person is expected to have some knowledge of computer accounting software, then say that in your requirements. This will not only reduce the number of applicants but also encourage the "qualified" ones to apply. Worrying about no one applying for the job should never be the challenge. The challenge is getting the right person for the right job. Fewer applications mean fewer decisions to make. That should work in your favour.

Story: Looking for a Conveyancing Clerk
Recently, our firm was looking to engage a Conveyancing Clerk on a fixed term contract. As usual, we put out the advertisement online through the internet. For 1 week, we received very poor response, to put it bluntly, we got none! This was probably due to the fact that we stated in no uncertain terms that we were looking for a Conveyancing Clerk on a fixed term contract. We also went on to state that the fixed term contract was for 6 to 12 months. Due to poor response, we were contemplating whether we should put out another advertisement without stating that it was for a fixed term contract to encourage more applicants. After all, we could always tell the applicants that we intended to put them on a fixed term contract at the interview. After contemplating this for a while, we decided to stick with the original advertisement as it would not be fair to the applicants and furthermore we did not wish to mislead anyone. We held on to our guns and persevered. Finally we managed to get a positive response. Well, it turned out to be someone that fit into our requirements. All in all, we received only 2 applicants, so that wasn’t a difficult decision to make!

It is always quite amusing to see words such as "must be hardworking, trustworthy and diligent", etc in the job requirements printed in advertisements. Well, let me say this, no applicants will admit or say that they are lazy, dishonest and frequently make mistakes when applying for a job! I am of the view that such words ought to be left out in the advertisement. Furthermore, an employer’s right of action against the employee is based on the Contract of Employment and not on what the employee claims to be, in other words "hardworking, trustworthy and diligent", etc. That is why we have a probation period to assess the new employee. Some may argue that using words such as "must be hardworking, trustworthy and diligent", etc are an effective "filtering system" but I beg to differ as "the proof of the pudding is in the eating", nothing more and nothing less.

If there is need to state certain good work habits expected of the new employee then state them. For example, you can state the person "must be able to work independently". In other words, the person is expected to be able to work with minimal supervision and it also implies the person must be highly responsible. You can also state that the person "must be able to speak and communicate with customers confidently and be proficient in at least English and Bahasa Malaysia". In other words, the person must be verbally proficient in the required 2 languages and must be confident. This will rule out timid and shy applicants. If you are looking for new employees with certain work habits, state them clearly and make sure they understand what you are looking for.

(iii) Salary
Sometimes when advertising for a job, the employers will state the salary range for that job. That is not a bad idea as it is another form of "filtering out" the applicants. The applicant can decide for himself or herself whether he or she wants to apply for that position given the salary. If you intend to insert the salary range make sure you stick to it! Don’t be overly generous by giving beyond what you have offered or be stingy by going below. A good employee can always be rewarded later with bonuses or an increase in his or her salary. On the other hand, if you think that you have a potentially good candidate but who does not quite meet your present requirements, you may want to offer a slightly lower salary during the probation period but make sure that upon confirmation, the salary is increased to the salary as stated in the advertisement.

Some employers do not have any idea of what salary range to offer. Yes, there are employers like that and I used to be one of them! Again, due to the lack of "filtering system", I received many applications. Those who came for the interview (we will deal with interviewing techniques later) were asking for very high salaries.

Story: The expensive young applicant
In the year 2000, I had a young girl of 22 years who came for an interview for the position of an Administrative Assistant asking for a salary of RM4,000.00 a month. In her application form, she gave her last drawn salary as RM3,500.00. By talking to her and assessing her, she didn’t look like the go getter type and didn’t appear to understand what the job required. I would say that the applicant was quite inexperienced and trying to represent herself to be someone who possessed skills that obviously she did not have at that time. When I asked for her last drawn salary slip, she was hesitant and there was a long pause from her. She then asked for a very much lower salary but that was enough for me to assess her and decide that she was not a good candidate.

Sometimes employers prefer not to include the salary range as they are more concerned about finding a good employee. In other words, they do not want to restrict their options with respect to the applicants.

Story: Junior secretary v Secretary
Many years ago, when I first started my firm, I was looking for a secretary. I didn’t know then that there was a difference between a junior secretary and a secretary. A secretary, normally an experienced person, commands a far higher salary than a junior secretary. A junior secretary could have anywhere from zero to 2 years of working experience. In those days, the internet wasn’t very popular, so I advertised in the print media. I received a number of telephone calls requesting for interviews. All of the people who applied appeared to be people with substantial experience. The years of experience were clearly stated in the applications and so were the expected salaries and the last drawn salaries. I found all of them to be of good calibre but the salaries were something that I did not budget for. One of the applicants who stood out was a lady who called in regarding the position. She was very professional in her approach and spoke impeccable English. I invited her to come to our office for an interview but she was reluctant. She replied it would be better if she faxed in her resume to let us have a look before we called her in for an interview. I was impressed but puzzled as all of the applicants jumped at the chance when offered an interview. Anyway, a few minutes after our telephone conversation, the resume came in by facsimile (e-mail wasn’t popular then). By perusing her resume, it became obvious that she was very experienced and at that time was working as a secretary to a well known Executive Chairman in a large company. She didn’t state her expected salary but looking at her salary at that time, she was getting more in a month than what I was getting! Perhaps not trying to put us in a awkward situation or maybe she didn’t want to waste anyone’s time, she thought it would be a good idea if we had a look at her resume first, and what a good idea it was!