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Taking a softer approach can help settle personal injury claims

Published on Saturday, 16 Jan 2016

The Background

From an HR perspective, losing an employee unnecessarily is a waste of resources, as an organisation is then required to hire a replacement through a lengthy and diligent recruitment process. 
In contrast to an internal complaint system, or otherwise a contentious dispute resolution process, a voluntary, non-binding dispute resolution process %– such as mediation – may be the best approach, as an agreement is facilitated without legal recourse.

The Case

After a short honeymoon period in her new job, a young and enthusiastic woman found herself facing demanding missions assigned by her superintendent. 

One of her duties was to capture subjects of a prohibited operation. A briefing session was usually arranged before each operation to ensure all participants were informed and directed. In one such session, however, her boss did not reveal the potential number of target subjects at the site, nor make her aware of any risks that would likely arise. 

When the crew arrived at the site, they found that there were many more target subjects than they expected. Although she felt that there was not enough manpower to control the site, she proceeded without support. While the operation was successful, she and her colleagues accomplished it with great difficulty, and at a price.

That evening, she felt discomfort in her back. She went to a public hospital for examination and immediately reported the incident to her supervising officer. To her surprise, she did not receive any positive feedback, but was met with an annoyed response from her supervisor. Seeking recourse, she reported the incident to a more senior manager, who denied any responsibility and asked her to follow the instructions from her supervising officer. 

The woman underwent a series of treatments at the public hospital and took a period of medical absence. She asked the employer to compensate her for her medical expenses, but was ignored. 

Matters were exacerbated when her colleagues did not reveal the full details of the circumstances, but remained neutral or supported the supervisor’s account of the operation. She eventually left the job in anger and frustration.

The Result

After a lack of communication, the woman commenced a personal injury action. The parties were then urged to consider mediation. Although the period between injury and leaving the workplace was almost one year, neither party had considered mediation until this point. 

A mediator was then appointed by both parties. This impartial and neutral professional, through a voluntary and non-binding dispute resolution process, helped the parties to communicate their feelings and concerns, and develop options for settlement. 

Although the dispute was settled, the woman had suffered from depression and had been forced to shift her role and take up clerical work instead. Her career had changed completely. 

This was a loss to the organisation, %as she had been passionate about her job and had planned to study a master’s degree for the purpose of career advancement.

It is worth highlighting that mediation is not always a monetary negotiation. Parties often explore non-monetary solutions, which are not likely to be reached through a normal litigation or arbitration process.

The Options

Had a mediator been appointed after the woman suffered the injuries, but before she commenced a court action, the outcome may have been different. 

In Hong Kong, workplace disputes are not uncommon. Such a dispute, regardless of the claims, may become a court action if not handled properly. This can happen in private or public sectors, where corporate image and reputation are of paramount importance.

Typical protocols for handling workplace disputes are usually in force, but are often not effective and can escalate the seriousness of the dispute. Unlike other jurisdictions, in Hong Kong, mediation is often not part of such protocols. Thus, it is recommended that mediation should be incorporated as part of the protocol handing HR disputes. Mediation is one of the newly arising dispute resolution mechanisms which can aid HR professionals. 

From an employer’s perspective, it is preferable to handle such grievances internally to maintain employee morale and protect the corporate image. 

From an employee’s perspective, it is also best to resolve the dispute in a quick and cost-effective manner. In most circumstances, mediation can assist both sides in reaching settlement swiftly and avoiding publicity.

This article appeared in the Classified Post print edition as Using softer hands to settle injury claims.

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