¯¯Ja im Wald da sind die Räuber …. Halli, Hallo die Räuber ¯¯

Just recently I was on the receiving end of a robbery, under circumstances where the average person would have felt safe; and the lyrics of the above caption came to mind. These are words from a jovial German folk song and are roughly translated as “The robbers are in the forrest”.  The song implies that folks should bear the risk of being robbed when entering the forrest – actually, that a pretty girl must expect to be kissed when she goes on a date.

How times have changed since this folk song was written. Change, in that in today’s date and time, robbers are no longer confined to the forrest, or through deforrestation and urbanisation robbers have moved to more lucrative markets, namely the towns and cities.

I truly believe that good overcomes evil and that there are more good people on earth than bad people. One must, however, also be realistic. Since the robbers have left the forrests there is no clear deliniation as to where the good folks live and where the robbers live. The robbers have mutated and live amongst the good folk. And thus, some burning questions come to mind

• Who and where are they?
• How can I protect myself?
• What can I do when I catch one?

The articels in this issue will tackle some of these issues from an employment relationship perspective, an area where The Management Advantage Consultancy can be of assistance to you.

Retaining good staff, starts with a sound recruitment strategy

The Namibian employer is faced with distinct challenges, albeit not unique, when employing any given size of staff complement. The first challenge must, however, be to find good people. It is a myth that employers are in the business of firing their staff. Most employers want to recruit staff, train them, and retain them so that by their input, both organisational and individual goals are achieved. Many employers, however, end up firing some/all of their staff long before natural atrition would have ended the employment relationship. Is it because “robbers” have infiltrated the system? Has your company become the proverbial forrest? The answer to these questions in most instances is a resounding YES.

So where did the employer go wrong? In all likelihood, the recruitment process. It is not my intention to regurgitate the theory of recruitment – this is available in most text books. To my mind, recruitment can be divided in to hard and soft issues.

Recruiting the right staff is a risky (and often expensive) exercise but keeping the following, six-step check list in mind, can reduce the risk.

• Hard Issues. (These are easy because you are not as yet dealing with people)
• Is there enough work to justify the appointment of a person? There are few things more frustrating than keeping an idle mind or hands busy. 
• If a full-time appointment can be justified, what does the job entail? Describe the job so as to ensure that tasks are not duplicated and, where possible, measures of performance (time, quality, quantity, and costs)
• Identify inherint job requirements for the job. Tread lightly here – whilst the search for Superman/woman remains an elusive reality, the inherint job requirements shoud be realistic and justifyable; e.g. if five years practical experience is required, make sure that five years is justifyable. Also ensure that the inherent job requirements for the job are not discriminatory!

• Soft Issues (These are difficult because from here-on-in you are dealing with real people)
• Get to know the person applicant. There are mostly many more applicants than what there are jobs. So you can pick and choose. But you have got to pick wisely. This may mean asking personal questions, which sometimes may seem irrelevant or not in line with text book thinking. The applicant can always opt not to answer the question – but may do so at own risk. It does, however, remain your right to get to know a potential employee and gettign to know them well before they start work.
• Obtain telephonic references that are current and valid. It is not a waste of time. Employment certificates and tyed references are ot what you are after. You want to hear from the referee the answers to the questions you pose. More often than not, it is those things that remain unsaid that paint a better picture of the applicant. I have found that if you state your purpose clearly for the telephone call and ensure confidentiality, most employers are willing to provide a candid reference. I have reviewed HR policies in many companies and, strange but true, I have yet to come across a policy that specifically spells out that telephonic references may not be given. Makes you think, does’nt it?
• Instead of a probation period, concentrate on an induction period. Time wise it could be the same. A probation period does not provide for overwhelming statutory rights. A probation period contained in a contract of employment may reflect an unplanned/disorganised recruitment strategy. An induction period, however, may reflect you welcoming your choice of applicant to the company, with a high degree of interest in getting him or her aligned to company values and goals. It will pay off, as the newly appointed employee will reciprocate the interest shown.

Making the right choice is never easy, the concolation is that bad choices provide lessons that need to be learnt. You can, however, also relay on a number of expert resources out there to assist you in this process. The Management Advantage Consultancy  is one such resource.  

The Proof of the Pudding Lies in the Taste of It

So, you have found the ideal candidate and you are well on your way to a long-term, mutually beneficial employment relationship. Not too long, however, you find that that what was said – or was it that what was not said – during the interview does no gel anymore. You thought you had an agreement. It however shows, that the candidate can not provide the service which you had thought he/she could provide; it was, after all, on the basis of such agreement or understanding, that you made the offer of employment to the candidate. 

When entering an agreement, both parties must have the intention to contract and they must reach agreement as to the purpose of the contract. Accordingly, when two persons enter into a contract of employment, they must both, at the time of entering the contract, believe they are entering into a contract of employment. Agreements may be affected by a number of things, such as misrepresentation, mistakes, and undue influence. The most common issue in the employment relationship is the possibility f the candidate having “misrepresented” him/herself.

If one party misrepresents him/herself when concluding a contract, there can be no agreement or “meeting of the minds” because the other party is unaware of the true situation. A misrepresentation occurs, when during the interview, one party deceives the other, either intentionally or unintentionally with the purpose of concluding a contract. In such cases, the contract may be voidable which is a fair and valid reason for terminating the contract. The termination of a contract of employment at the instance of the employer will always be regarded as a dismissal, irrespective of the reason. For the dismissal to be regarded as fair, however, both procedural and substantive fairness must be proved. For procedural fairness the rules of natural justice should apply – e.g. notification, right to representation, etc. In a case of misrepresentation from a substantive point of view, the employer would have to prove on a balance of probability that misrepresentation at the interview had been made and had the employer known the truth he/she would not have entered into a contract of employment. Further that the misrepresentation was a representation that was fundamental or material to the nature of the contract. Linked to this is the assumption that because of the misrepresentation, the contract was entered into.

Wishing to terminate a contract of employment on the basis of misrepresentation, the employer would have to prove the following :

• That representation was made – interview was held and what was said
• That the representation was as to a fact, as opposed to an opinion
• That the representation was false
• That the representation was material (inherent job requirement for the job)
• That the representation was intended to induce the employer to making an offer of employment – entering into a contract
• That the representation did, in fact, induce the contract

A misrepresentation need not take the form of an obvious falsification of a material fact, e.g. a falsified qualification. A misrepresentation may also take place where there has been active concealment of a particular fact which would be material to the contract of employment. The fact must be such that the person has a duty to reveal the truth., e.g. someone who has a criminal record for theft, deliberately omits to put it on his/her CV when applying for a job which requires the highest degree of integrity and honesty.

A gentle word on behalf of The MAC

This time of year most of us are faced with great questions of our time. “Wood or charcoal? To marinate or not to marinate? Are Webers for Wusses? How far off the coals should the grid be? Turn all the time, or turn once? Fillet in tinfoil, or not? Salt and pepper before, during or after? Chicken or fish?”  Whilst we at The MAC have our own opinion on these crucial questions, we doubt that we can answer these to the satisfaction of our client base.

We can, however, provide peace of mind on other critical questions, such as whom you can rely on when it comes to providing solutions for your HR and IR issues. 

We are ready to give you the support you need. Think about making an appointment with The MAC to discuss your HR and IR requirements. You will find us an invaluable resource at a price that just can't be beat.