Gender equality as an important field of mediation

Note on how to cite this journal:

Author, Date of the post, WMO Conflict Insight, Title of the post,  ISSN: 2628-6998, https://worldmediation.org/conflict-insight 

We live in a time of promotion and active use of social norms that ensure gender equality as well as respect of human rights. At the international level, gender equality issues as well as human rights are regulated by Universal Declaration of Human Rights . International Law and Gender Equality Non – Discrimination Legislation, Requirements and Good Practices is just one of the documents regulating the issues that will be discussed at the international level.

International institutions such as the United Nations are examples of good practices of equal representation of both sexes in senior management positions as well as equal salaries. Whether the HR management of companies and state institutions is actively applying the principle of gender equality is just one of the questions that we will consider.

Situation: Here is an example of a woman who worked in 2009 for a company in Serbia. She worked on a temporary employment contract. When she was pregnant, the employer did not extend her contract and she was left without job. Considering that her elementary human rights were violated (the right to work), she sued the company in order to return her job. The judicial process was completed in the way that she was returned to work position by force of the law, through signing a new temporary employment contract.

Although the Republic of Serbia received the first Law on Mediation in 2005 this process was brought in front of the court by the force of the Law. Women still remain unemployed today in case they go on maternity leave, which points to poor business practice of companies. Often, instead of a permanent Employment Contract, companies enter into employment contracts for a period of only a few months, which puts employees in a situation of constant uncertainty whether their work in the company will be prolonged or not.

In the context of human rights, the right to work is one of the primary rights guaranteed by the Constitution of the Republic of Serbia. Article 60 The Constitution of the Republic of Serbia guarantees the right to work as one of the elementary rights.

More precise rights and obligations of employees and employers are regulated by the Law on Labor. The quality of work of the companies and the observance of constitutional and legal determinations are checked by the Inspectorate of Labor and Employment of the Republic of Serbia.
Despite the existence of regulations, the right to work is in many cases not respected. The result of a bad business practice is the discharge of a woman who went on maternity leave.

It is unequivocal to conclude that a woman left without a job has suffered a gross violation of elementary human rights which has been described in detail. If we analyze the situation from the perspective of a woman who is unemployed, we realize she has suffered an emotional injury because she is unfairly damaged by the employer just because she is biologically predetermined to give a birth to children. According to Freud, nature defines what human being is. In a situation where the family is expanding, the significance of losing work is even greater because the needs with more members are bigger. A woman who, at the time is absent for maternity leave, finds out that she has lost her job is exposed to stress, which can affect quality care of newly born child. Let’s say what women experience in the post-child-bearing period and the strong unpleasant emotional experiences. These negative emotional experiences are even more pronounced in the event that there are external influences that would make the psychological condition worse. One of the greatest stresses a person can experience is losing a job.

On the other hand, if we imagine ourselves in the position of an employer, his business may be jeopardized by the decrease in the number of workers. The question arises whether the employer has the opportunity to hire another worker temporarily until the woman returns from her maternity leave. Do they have enough staff to do some of the work activities instead of a worker who is absent at some point in time, whether the reduction in the number of workers reflects the productivity of the company? We must be aware of the fact that companies globally operate in a very uncertain environment. Changes are practically every day. Companies must seriously plan their work which, in the conditions of liberal capitalism, requires greater flexibility and a very quick response to changes in order to maintain competitiveness or achieve it.

We understand that in a conflict situation, both sides face challenges that they need to respond to in order to avoid any damage, whether emotional or material. The point of conflict is no doubt the jeopardizing of work processes that affects the efficiency and effectiveness of the company on the one hand, and on the other, the violation of elementary human rights and the right to work.

Win – win position would be to find a solution in which neither side will be damaged. A woman could be on maternity leave for several months without loss of working position. In agreement with the employer, she could arrange for the continuation of work after the termination of the leave. Her work operations could have been performed by several employees already working in company who know business culture as well as business processes. Another option would be to engage a trainee who would be engaged in a time period while the woman is absent. The third option is the employment of a student who has just graduated with no work experience and who would volunteer in the company to qualify for future work.
Let’s keep in mind that the woman who was fired for the same employer worked for five years to earn an excellent radon experience and while she worked contributed to the positive business of the company. Her maternity leave resulted in termination of employment. The management of the company was thinking of shorter paths. A short-term, vacant job poses a threat to a positive business. In the long run, a fellow employee with a wealth of work experience brings more harm than good.

HR practice has shown that every new employee in a work organization needs a minimum of two months to adapt him/herself as well as to overcome specific elements of the company’s culture and work processes. Work in this period is less effective and efficient. For the company, hiring a new employee in the first few months of work is a form of investment that should be paid in the future. The adaptation period for a new employee to a full working capacity is the period that corresponds to the maternity leave of the female worker. One of the questions that arise is whether it is more cost-effective to preserve an employee with experience or to entertain a new employee who is yet to gain experience in a new random environment?

The number of options for out-of-court conflict resolution is high. Rigidity and gross violation of the law is not the right solution. Companies, as well as employees are in a position that can bring harm but not benefit.
In the segment in which we describe the win – win position, we simultaneously answered the questions that were not essentially written:

  • Whether a woman could go on maternity leave with the possibility of extending the employment contract?
  • Was the company able to cover the work with existing human resources?
  • Why the solution was not to hire a trainee for a limited time?
  • Why, as one of the options, did not consider the engagement of a student who would volunteer in a vacant position and thus earned a radon experience he needed a real business engagement.

The introduction of mediation and its increasing application adds to the fact that numerous conflicts are resolved by court. Also, the active implementation of HR management gives the company the opportunity to pre-empt conflict situations on the employer-employee relationship.

The HR management is a business practice of a recent date in companies in Serbia. HR management enables creation of a favorable business climate both for the employer and for the employees. HR management’s competence is, and above all, it represents the interests of the company, however, the real interest of the company is human resources without which work would not be possible.

In the circumstances that the conflict arrives, it is best to resolve them by court, with the active use of mediation, which will find a solution that meets the interests of all parties to the conflict. The process of resolving conflicts is faster and more cost-effective especially when it comes to disputes.

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6 Responses

  1. Dear Kristina,

    thank you for your time and thoughts. You are so very right, such cases are still in practice but not only in Serbia. In Spain for example, it is still normal to keep employees in a practically never-ending status of temporal contracts in order to minimize their rights towards the employers. In other countries and cultures seeing the employee without any rights, is pretty ‘normal’. In such cases, we find a normalized missing self-confidence of the working class in a society. That means that this group is used to be treated in a ‘non-legal’ way. While the case is, that there possibly never existed any rights of employees in such countries, regions, or cultures, and talking or introducing the idea of having rights would be very new and possibly even scaring to them. So, the first step would have to be an educational one by raising awareness towards the possibility of having rights on both sides. Possibly, you can imagine that employers on such a national level would try to keep their traditional setting.

    Additionally, we need much more transparency and reports on such cases. Only by sharing such stories, we have the possibility to create regional working groups and to initiate a change. So maybe the conclusion has to be if we ask for our ‘right to work’ or the ‘right to become and raise’ babies. I think this changes the perspective and adds a totally different light to it, showing well the weirdness of the context.

    Best regards, Daniel Erdmann

    1. Gender equality is an area in which mediation is significant in the case of resolving the conflict. In the conditions when there is no conflict, mediation is a way of preventing it. In the context of gender equality HR Management has a disadvantage because the interests of the company are always at the first place. We can see contrast with etymology sentence constructions Human Resources. At all times companies should be treated employees as an important recourse. Equally, women and men. Mediation should be an important element of HR management. An excellent example of promoting gender equality is the New Zealand Prime Minister who came to the UN General Assembly with three – month old baby.

  2. I suggest the question as to what “equality” is should be considered. When people make choices, men or women, that has an impact on the company and society, it may be necessary to redefine what is to be considered fairness and equality.

    1. Dear Charalee,

      I think you are totally right. I believe it is a very sensitive topic. Maybe we also have to face the question if gender equality is possible and yes – what is actually means. Nature created two sexes for a reason and both have specific roles, as well as strong and weak characteristics. But getting back to the content of the article, I think that bearing a child is not a reason to offer or to keep a person in the loop of temporal contracts, or to even finalize the a contract.

      Thank you for your thoughts,

      Daniel Erdmann

  3. Dear Kristina,

    I am happy to hear that Serbia guarantees the right to work, which sadly can’t be said for most other countries even today. It must be acknowledged that employment is a means of livelihood that aids our most basic needs, and there must be proper mechanisms in place to protect that salient right.

    There is no doubt that gender equality must be protected as an inalienable right in every society. While there is no contention on the damage that has been done to the plaintiff’s personal and professional life, the problem is encountered when we try to determine whether it is in fact the right to work which has been violated, since intent is a challenging tort to prove. It is hard to pinpoint whether it was actually discrimination and violation of law, or simply non-extension of contract at the discretion of the employer for other reasons. Is the right to work a strict liability tort, where the employer becomes liable for the injury no matter what the intent was or what precautions were taken?

    This brings me to my second thought, on whether mediation is the right tool to be employed in similar situations. I acknowledge that different methods of conflict resolution are suitable for different contexts. You mentioned that the best option is to resolve them by court, which does utilize valuable time and resources of the judicial system. Given that courts often recommend civil and domestic disputes to be resolved through mediation outside the court, could we consider alternative dispute resolution outside the legal recourse? ADR is even more cost effective than mediation in such a situation, and has proven to be equally effective in bringing conflicting parties to a meeting point.

    1. Dear Rhea,
      Serbia is facing with a big challenge. The country is on well path to adopting EU norms such as Human Rights and Gender Equality. Mediation as well as Advocacy are examples of how to achieve goals.
      Mediation in HR management as a useful method for preventing conflict.

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