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Friday 19 July 2019
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Ethical workplace decisions: an HR/IR perspective

There has been an increase in public global awareness, as well as expectations of companies to act in good faith especially towards its workers and customers. There is now greater interest and discourse whereby a number of companies are being publicly scrutinised for their unethical decisions.

A good example is Fox News shielding Bill O’Reilly over the years because of his value to the network. The company constantly offered financial settlement to a number of their female employees for O’Reilly’s misdeeds. When it eventually became public and advertisers started pulling out, only then was he fired.

Uber was also plagued with negative news of sexual harassment among a number of unethical behaviours, until it fired its founder Travis Kalanick and started its transformation.

So, what about our own workplace conduct, from an ethical perspective? Conduct as it pertains to employers’ expressed and implied obligations to the employees, such as safety, equity and fair dealings? What about expected conduct from the employee and his/her implied duty of fidelity, trust and good faith towards his/her employer? There are unwritten expectations in the contract of employment for both employees and employers guided by ethical standards, practices and behaviours and which are legally enforceable.

What constitutes good or acceptable behaviour can therefore vary, so we rely on policy and law to help guide us. Societal ethical restraint is more efficient where there exists proper working resources of the law, its enforcement and economic incentives. Workplace restraint is dependent more on our labour laws, workplace policies and procedures and our Industrial Court’s jurisprudence.

There are two primary theories of business ethics that influence decision making. The first is the theory of amorality where business practices and decisions can vary from the standards of societal ethical ideals. In this case, it is offered that the market mechanisms will act as the distillation process for any unseemly behaviour/conduct/decision, contrary to the societal idealisms. This conduct compartmentalises business ethics and societal ethics and places focus on the business stakeholders and their wider economic successes over the good ideals set by society.

An example of this can be found in the US, as the debate continues over economic prosperity of the coal, and fossil fuel extraction industries, over regulations because of the environmental impact of these processes. It is for those very reasons that this theory has been losing popularity over the decades.

The other theory is of moral unity wherein the ethical standard for business decision/behaviour is judged by the same rules which society bears. Using this theory, the desire to succeed is never an excuse to deviate from acceptable principled behaviours. Then there are the Aristotle factors of restriction of choice which are ignorance and incapacity.

In keeping the tone of ethical practices in the realm of human resources decision-making, one must also consider where misinformation, the uninformed mind and naivety act to the detriment of the workplace society. In most cases , these are not excuses or reasons that our Industrial Court usually accepts.

I did not envy the position of the court when it was called up to decide in 2013 the case of Oilfields Workers’ Trade Union vs Nestle Trinidad and Tobago Limited, and stated that, “The court finds that the worker cannot entirely be described as a witness of truth.” … “That the worker had failed to observe a policy direction which was in his line of duty when he failed to produce the deviation report.” However, the court still awarded the worker the sum of $458,000 in damages because it determined, among other things, that “The company’s decision to dismiss the worker was unreasonable because the evidence on which the company based its decision was unreliable.” The court felt that a period of suspension would have been more appropriate given that, in its view, the totality of the company’s evidence did not justify dismissal.

In this case the worker had a responsibility to ensure that he acted ethically with regard to the health of the public at-large in his duty as the production shift manager. His behaviour was unethical, for by attempting to hide his mistake, he deprived the company of the opportunity to fix his error and protect its brand. A very grave, selfish and unfortunate decision.

Companies must, however, be very wary that unethical decision-making particularly from an industrial relations perspective, could be very costly should such decisions be challenged in court.

This could be no more evident than in the case of the Banking Insurance and General Workers Union vs Sports Company of Trinidad and Tobago Ltd. In this matter the company could not defend its decision to terminate the employment contract of the worker and offered no challenge to the worker’s evidence at trial. The court then awarded a quantum of damages to be paid to the worker of over $700,000.

The union however, successfully argued that the employer’s actions were so egregious that it warranted the court’s considerations of punitive or exemplary damages as provided for in Clause 10:01 of the Industrial Relations Act. The court found favour with the union pleadings and expressed its further displeasure with the company’s overall behaviour in allowing the matter to come to full trial when it was quite aware that its actions were indefensible and ordered an additional $200,000 to the worker.

As a guide for ethical decision-making, an employer should ask if the action being considered would be seen as harsh and oppressive, unfair, illegal or even dishonest. An employee should always seek guidance from company policy, the employment contract and his/her duty of fidelity to the company to ensure behaviour is consistent with ethical standards.

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