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Employment Contract, Termination and Restraint to Trade

Introduction

An employment contract is an agreement between two parties, that is, the employer and the employee (Mouzas, S. & Furmston, M., 2008). The contract is a legally binding agreement that is enforced by law and in case of a breach of contract the court may provide a remedy. According to Albertson (2007) “Oral agreement can also constitute a binding legal contract as long as the goods and services or any offer in place is not illegal.” However, lack of material documentation of an oral agreement may fail to give the actual terms of the agreement. Concurrence of wills occurs when one party makes an offer and the other party accepts the offer (Mouzas, S. & Furmston, M., 2008). The contract entails terms and conditions of employment, termination, and the restraint to trade (Albertson, 2007). The relationship between a given institution or organization is handled by the Human Resource department which is mandated to hire, disburse any employees benefits at the same time handling any grievances that the employees may have ( Freeman and Richard 2009).

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Human Resource Issues

The Human Resource involved in this case study is a legal issue concerning the contract between the university and Dr. Wong. The relationship between the University who is the employer and the employee to be has been soiled because of the mis-presentation of information on the terms of employment (Behrman, J., 1988). This is a kind of mis-presentation that leads to fraud inducement; it is possible that Professor Sinclair gave the wrong information so that Dr. Wong would accept the offer. There is a breach of the agreement which was informal between the University and Dr. Wong. The head of the management had specified all the rules and regulations governing the employment contract and for these reasons, Dr. Wong had accepted the offer for the employment. Dr. Wong accepted an offer that was mispresented by false statements from the University head of Management thus inducing Dr. Wong to accept the offer. Dr. Wong was given false and inadequate information which made him have a wrong impression of the job offer, (Dubin, 1958). This makes the terms of the agreement between the University and Dr. Wong to be uncertain or incomplete. Apart from false information, the problem would have arisen from a conflict of interest between the Human Resource department and the Management (Behrman, J., 1988). This is because the head of management had no authority to make an offer for employment but was only mandated to offer terms and conditions of the job position on offer (Hallock, 2009). When Professor Sinclair, went on to make an offer for employment she overlapped her mandate thus bringing a problem of inter-departmental conflict which resulted in Dr. Wong accepting the offer. (Lee, E. 1996). It is unclear between Dr. Wong and the Assistant Human Resource manager as to who is telling the truth. This is because the conversation between Dr. Wong and the head of management was undocumented and just took place over the phone and also this conversation on the change of terms and conditions of the employment is still undocumented. Lack of documentation of the terms and conditions of the job offer has also contributed to this misunderstanding.

The legal issue involved here is that the terms of the contract are uncertain and incomplete and therefore reaching a consensus or an agreement is hard. The contract is due to fail due to a lack of agreement on key issues governing the terms of the contract. According to (Markey and Hodgkinson, 2002), it is possible to make a mis-presentation in an employment contract either by word or by conduct (Hallock, 2009). From the case study, it is clear that there was a mis-presentation of facts since Professor Sinclair was not making a general opinion or statement of opinion but she was giving terms and conditions governing the job on offer.

How to Avoid the Situation

This situation could have been avoided by documentation of the terms of the contract or the agreement (Buidens et al, 1981). Documentation of the contract provides solid material information on the existence of terms and conditions of a contract. This is important as it can be used as a reference point when there is a change in the employment contract (Buidens et al, 1981). The University could have provided a contract form to Dr. Wong with all the terms and conditions of the employment. This could have helped to avoid the problem of presenting two contradicting statements between the head of management and the Assistant Human Resource since all the information would be found in the contact form.

The benefit of documentation could have helped to avoid double standards of the same job position as presented in the case study (Schwartz, 1976). It is impossible to offer a job and then counter the terms and conditions one had initially indicated. The fact that the assistant Human Resource manager has a contract form where he is reading the terms of the contract is not enough to convince Dr. Wong that Professor Sinclair was suggesting terms and conditions of the same job position whilst she serves in the same Management and the same University. This shows that there was an overlapping of tasks and that the Professor involved herself in an area she was not supposed to have served. It could have been good if the University had a proper management committee with each department having autonomy and authority to perform its mandate without being interfered with.

The university management also could have come up with rules and procedures to follow before offering one a job (Wood, J, and Wallace, J 2004). This is because it is evident that, the head of the management had already offered a job to the potential employee without considering her position in the institution, it also evident that the profiling of the candidate was not made private since the Professor still communicated to the assistant Human Resource Manager that Dr. Wong was relocating to Australia because of family reasons a matter that has caused him the flight fare to Australia.

Ethical issues

The ethical issue involved in this case is a lack of honesty and utmost good faith. The most vital aspect needed in an informal contract is honesty. Information shared at this juncture needs to be true and unto the point, because it is from such information that one determines to accept or reject the offer. It is clear from the case study that Dr. Wong was sincere enough even to real to the head of management that he was to relocate to Australia because of family reasons. Unfortunately, the University management did not exercise utmost good faith on the information they gave. When the assistant human Resource Manager indicates that the head of management was giving possible terms of the contract is not sincere because it can not be true that the Professor could not know the terms and conditions for that position. It is clear that the assistant Human Resource Manager is not sincere and thus lacking utmost good faith as a moral virtue. The head of management also did not disclose all the necessary information and thus ended over-promising Dr. Wong on the benefits he will accrue after he is employed by the University. It is from these overestimated and un-clarified assumptions that Dr. Wong ended up accepting the offer although it was not true. Mis-presentation of the information brought out a lack of honesty hence an ethical issue which portrays the head of management as being incompetent in her position as such acts question the integrity of a person committing them (Behrman, 1988).

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It is also possible that the assistant Human Resource Manager is being corrupt and wants to use the fact that Dr. Wong is already in Australia and was deemed to travel so as not to give him the Flight fare and the relocation allowance. It has been observed that in many organizations such instances are usually capitalized by the employers to enhance fraud in their organization. This is brought about by a lack of confidentiality on the information shared between Dr. Wong and the head of management, which also is an ethical issue. From this instance, it appears that the relationship between the head of management and the assistant Human Resource Manager would be dented because of lack of proper coordination thus this will hurt their day to day working which may translate to poorer delivery of services to their clients which is also an ethical issue (Herman, 1985). From the information given it is obvious that there is a problem as far as honesty and utmost good faith are concerned on this issue, (Stone, R, 2005).

Advice to Doctor Wong

I would advise doctor Wong not to reject the offer on the phone but accept to visit the institution and validate the information given. He may also try to establish the terms of the offer by talking to people who are in the same position being offered or by visiting the University and talking to both the head of the management Professor Sinclair and the assistant Human Resource Manager to try to establish the reasons for the discrepancy in the information given. After establishing or validating the terms needed then he can accept the offer and make sure that he has read all the terms and conditions involved before signing the contract or accepting the offer. This is very important as there will be material evidence in case of any change on the terms and conditions of the offer (Atiyah, 1979).

Conclusion

The employer needs to give adequate and correct information about a given position on offer. This may not only help to find a suitable candidate for the job but also portrays a better understanding of one duty and responsibilities. The first impression between the employer and the employee leaves long-lasting effects as those two works together. Therefore, it is important to have a well-coordinated and harmonious working human resource department. Stone, R. (2005) asserts that “It is obvious that most individuals attain the status of being employees after a job interview. If the individual is seen to be a satisfactory fit for the position, then official offer for the interviewed position is given as official employment”. The individual then will have a defined salary and position. The individual will also become conversant of his or her privileges and rights.

Reference List

Albertson, T., (2007). The Gods of business: the intersection of faith and the marketplace. Los Angeles, California: Trinity Alumni Press.

Atiyah, P., (1979). The rise and fall of freedom of contract. USA: Aspen Publishers.

Behrman, J., (1988). Essays on ethics in business and the professions. Englewood Cliffs, New Jersey: Prentice Hall.

Buidens, Wayne, et al., (1981). “Collective Gaining: a bargaining alternative.” Phi Delta Kappan, 63, pp. 244-245.

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Dubin, R., (1958). The World of Work: Industrial Society and Human Relations. Englewood Cliff, New Jersey: Prentice Hall.

Freeman, R. and Goroff, D., (2009). Science and engineering careers in the United States: an analysis of markets and employment. Chicago: University of Chicago publishers.

Hallock, K., (2009). “Job loss and the fraying of the implicit employment contract.” Journal of Economic Perspectives, 23(4): pp. 69–93.

Herman, J. (1985). “With collaborative bargaining, you work with the union–not against it.” The American School Board Journal, 172(47), pp. 41-42.

Lee, E., (1996). Globalization and employment”, International Labour Review, 135(5), pp. 485–98.

Markey, R. ad Hodgkinson, A., (2002). “Gender, part-time employment and employee participation in Australian workplaces.” Employee Relations, 24(2), pp. 129 – 150.

Mouzas, S. & Furmston, M., (2008). “From contract to umbrella agreement.” The Cambridge Law Journal, 67, pp. 37-50.

Schwartz, A., (1976). “Product liability and judicial wealth redistribution.” Indiana Law journal, 51, pp. 558.

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Stone, R., (2005). Human resource management, 5th edition. QLD, Australia: John Wiley and Sons.

Wood, J. and Wallace, J., (2004). Organizational behaviour global perspective, 3rd edition. QLD, Australia: John Wiley and Sons.

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StudyCorgi. (2021, November 6). Employment Contract, Termination and Restraint to Trade. Retrieved from https://studycorgi.com/employment-contract-termination-and-restraint-to-trade/

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