The Doctrine of the Employment - Essay Example

1. Employment at will The doctrine of the employment at will in the United s is based on the premise that in the absence of a contract stating the specific duration and terms of the employment, both the employer and the employee is free to terminate the employment for any reason whatsoever1. When the employee feels that he or she longer needs the services of the employee, he or she can terminate the employment of the same anytime. On the other hand, the employee can resign form his or her job anytime he or she feels that he or she no longer cares for such job. The presumption of this doctrine is that both the employer and the employee are in equal footing and can therefore regard each other as equal. Is the right of the employer to terminate the employee anytime absolute? Much as we would like to consider that the employer and the employees are in equal footing, there are evidences that point out to the imbalance of power in the employment arena. Note that the employees are dependent on the employer for their livelihood and because of the changes of the times; employment may not really come by easily for many people. During the time of the Industrial Revolution when the employees started to form unions and enter collective bargaining agreements with the management, the doctrine of employment at will was challenged (Muhl 2001). This leads to the enactment of 1964 Civil Rights Act which includes in Title VII thereof provisions which paved the way for the different States to adopt statutory exceptions to the concept of employment at will. According to the provisions of this act, the wrongful discharge of employees due to “race, religion, sex, age and national origin” is unlawful, therefore, where an employee is discharged based on these grounds, he or she can go to Court seek for redress2. Since the employment at will doctrine has been challenge many times over, it had admitted a number of exceptions. There are three major exceptions to the employer at will doctrine, first, the public policy exception, second, the implied contract exception and third, the covenant of good faith exception. According to the public-policy exception, when the discharge of the employee was done in violation of the well-established public policy of the State, the employer is liable for violation of the law. The public policy of the State can be derived from the State constitution, administrative rules and statutes (Muhl 2001). The first case that recognized the exception under public policy is that of Pertermann v International Brotherhood of Teamsters (1959)3.Later on, the public policy exception was given a broader definition in the case of Palmateer v International Harvester Company (1981)4 where the court ruled that in defining the exceptions under public policy, there should be proper balance between the interest of the employer and the employee. In the second exception which is the implied contract exception, where the “employer made a oral or written representations to the employees” (Muhl 2001) with regards to the status of their employment, such oral or written representations of the employer shall be used as basis to determine the status of the employment contract. Note that in the case of Toussaint v Blue Cross and Blue Shield of Michigan (1980)5, the Court ruled that the employer cannot disregard the implied contract with the employee at whim. However, if the employer really wants to escape from the liabilities that implied contracts could bring about, he or she can do so by stating in clear and explicit terms the terms and conditions of the employment. The third exception of the doctrine of employment at will is the convent of good faith exception. According to this exception, when the termination of the employee is “done in bad faith or motivated by malice”( Muhl 2001), such termination of the services of the employee is considered unlawful. 2. Mediate of Employees According to Ury (1993), the most effective way to reach mutually beneficial outcomes in the field of mediation and negotiation is to (1) set an object (2) make inquiries to help you understand the other party or parties better and see things from their perspectives, (3) frame the negotiation in a way that it focus on the satisfaction of interest of parties and not just simply address the positions given by the parties (4) helping the parties understand by educating them of the consequences of their actions and (5) offering them some possible solutions and compromises. In our case, if I were Dawn Burk, the first thing that I will establish is the end purpose or goal of the mediate. If we take a closer look into the situation, there are actually three parties involved in this case namely, Mccllen, Aranda and the company. Note that the conflict between the two employees is affecting the productivity of the company therefore the position of the company must be taken into consideration. It is important to draw the lines at this point and establish the end purpose of the mediation so that the whole process can be guided accordingly. In defining the goal of the mediation process, the positions of all parties involved must be considered. It is also important that at the start of the mediate process, the parties involved must be clearly informed of the goal of the mediation so that they will understand fully the significance of the procedure. The second thing that I will do if I were in the place of Dawn Burk is to study the employment record of the parties. The employment records of the parties could yield some clues on the general working habits and behaviors of both parties. In this case, one of the parties has been in the company for several years while the other had only been there for a year. Since the conflict seem to be one the inability of the parties to adapt to changes in their department, it is important to evaluate their past work behavior to understand them better. The third thing that would do is to encourage for additional statements from Mccllen and Aranda regarding the reason of their conflict. Although the statements given by the two have been helpful, there are still questions that need to be answered before the start of the mediation process. Furthermore, statements from some employees who are working closely with the Mccllen and Aranda should also be asked to submit statements on how the conflict between the two employees had affected the operation. However, the statements given by all parties should be kept confidential and will only be revealed upon express permission of the person who gave such statement. Since the conflict between the employees seem to be a case of lack of communication which stems from some feeling of animosity which stems from the fact that the two employees come from two different generations, it would be wise at this point to conduct a one-on-one conference with the parties involved before the are brought together to discuss the problem. During the one-on-one conference, it would be advisable to draw out the possible compromises that the parties would enter into. References: 1. Kellet P (2006) Conflict Dialogue: Working with Layers of meaning for Productive Relationship Sage Publications, Inc; New Ed edition 2. Lee-Wright, Inc. v Hall 840 S.W.2d 572,577 3. Mott v Montgomery County, 882 S.W.2d 635,637 4. Muhl (2001) The employment-at-ill doctrine: three major exception retrieved March 4, 2007 http://www.bls.gov/opub/mlr/2001/01/art1full.pdf 5. Palmateer v International Harvester Company (1981) 85 Ill.2d 124, 421 N.E.2d 876 6. Pertermann v International Brotherhood of Teamsters (1959) 174 Cal. App.2d 184 7. Toussaint v Blue Cross and Blue Shield of Michigan (1980) 408 Mich 579, 292 N.W.2d 880 8. Ury W. (1993) Getting Past No: Negotiating your way from confrontation to cooperation. Bantam Book Read More