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未及時續簽勞動合同,企業需要支付雙倍工資嗎?
日期:2021-12-30 瀏覽

  關鍵詞:戰略人力資源管理

   The Merton Healthcare Trust manages one of the leading provincial teaching hospitals. As explAIned by the Chief Executive, the critical success factors for the Trust are ‘to deliver our contracts and this means meeting our volume and quality requirements and staying within budget’. On the achievements of the Trust, the Chief Executive commented:

  

  If you want to ask if we are successful, the answer is yes. We deliver our contracts, we’re in excess by about 4 or 5 per cent a year, a rising target; we do so within budget and get a Charter Mark. If you do want to measure things, the measured success is there, but if you ask me if I am satisfied, of course I’m not. We can always do better.

  Corporate and strategicHR planning within the NHS is substantially different from that in other organizations. This is because of the nature of the NHS as it has developed. The Chief Executive’s trenchant comment on its management approach was:

  I think people try and impose an out-of-date, industrial-style management structure on the Health Service which is wholly inappropriate. A lot of what isBEIng attempted will fail. How damaging this will be it is difficult to say, because one of the characteristics of the Health Service is that no matter how badly you manage it you can’t stop people treating patients. If the Health Service manufactured Fiestas it would have gone bankrupt years ago, but it doesn’t; it manages management while the health carers get on with caring for patients.

  

  Corporate strategy

  On corporate strategy the Chief Executive said:

  It’s a misunderstanding that we can have a strategy. I don’t believe it. We have to have a flexible response mechanism. If we have any long-term strategy at all, it is that of flexibility.

  People talk about a finance-led strategy. But you can’t have a finance-led strategy because it’s only a measurement. What you have to have is a commitment to provide the best possible care within the resources available and the people best able to do that are at operational level, not at management level, not at board level and certainly not at regional level.

  The approach to formulating strategy in the Trust clearly depended on the management style of the Chief Executive. His following remarks convey some indication of this:

  I’ve only got two lines in my job description: if anything goes wrong it’s my fault; if anything goes well, it’s to somebODy else’s credit because I didn’t do it. I think that’s the only job description a chief executive should have.

  It’s a sort ofBATtle all the time, isn’t it, and I redress the balance, and nobody knows that I haven’t really got any power at all.

  (On performance-related pay) I refuse to pay the workforce 97.5 per cent for failing and 2.5 per cent for succeeding. It’s an insult and all it does is demotivate people. I pay them 100 per cent for succeeding and it’s my job to make sure they succeed. It’s not my job to dock their pay if they don’t. So we have a success-oriented strategy in which we expect people to succeed and if they don’t, we help them to succeed.

  The Finance Director gave his own impression of how strategies are formulated in the Trust:

  Our corporate strategies are evoLVed over a period of time through discussions between the executive directors and the Trust board. In a sense our strategies are evolved through our management style. We have a visionary Chief Executive, a Medical Director who has a very cool head and knows how everything works, a Director of Operations who is a real go-getter and a driver, a Director of HR who is a thinker and I, who am very task-oriented. And out of this we get our strategies.

  The importance of the team approach was underlined by the Director of Operations:

  Our strategy has to be very flexible. We put it together by debate amongst executive members of the board. This has all the hallmarks of people who have worked together for a long time, and trust one another, and don’t take offence.

  HR strategy

  The Director of HR commented that:

  We have to be an organization which can do whatever the purchasers require. So our corporate strategy has to be about preparedness, flexibility, attitude and reputation. So it’s very much an HR strategy.

  The Director of Operations said that:

  My contribution to the HR strategy is to keep on asking the question: ‘What sort of person will we need to deliver the care in five, eight and ten years’ time?’

  The task

  What insight can be gained from the approach to corporate and HR strategy in this NHS Trust in the light of the following observations and views on strategy? In particular, where does the Merton Trust strategy formulation process fit in the fourfold typology suggested by Whittington?

  Observations and views

  It has been said (Bower, 1982) that 'strategy is everything not well defined or understood'. This may be going too far, but in reality, strategy formulation can best be described as 'problem solving in unstructured situations' (Digman, 1990) and strategies will always be formed under conditions of partial ignorance.

  The difficulty is that strategies are often based on the questionable assumption that the future will resemble the past. Some years ago, Robert Heller (1972) had a go at the cult of long-range planning: 'What goes wrong', he wrote, 'is that sensible anticipation gets converted into foolish numbers: and their validity always hinges on large loose assumptions.'

  More recently, Faulkner and Johnson (1992) have said of long-term planning that it:

  was inclined to take a definitive view of the future, and to extrapolate trend lines for the key business variables in order to arrive at this view. Economic turbulence was insufficiently considered, and the reality that much strategy is formulated and implemented in the act of managing the enterprise was ignored. Precise forecasts ending with derived financials were constructed, the only weakness of which was that the future almost invariably turned out differently.

  Strategy formulation is not necessarily a rational and continuous process, as was pointed out by Mintzberg (1987). He believes that, rather than being consciously and systematically developed, strategy reorientation happens in what he calls brief 'quantum loops'. A strategy, according to Mintzberg, can be deliberate – it can realize the intentions of senior management, for example to attack and conquer a new market, but this is not always the case. In theory, he says, strategy is a systematic process: first we think, then we act; we formulate then we implement. But we also 'act in order to think'. In practice, 'a realized strategy can emerge in response to an evolving situation' and the strategic planner is often 'a pattern organizer, a learner if you like, who manages a process in which strategies and visions can emerge as well as be deliberately conceived'.

  Mintzberg was even more scathing about the weaknesses of strategic planning in his 1994 article in the Harvard Business Review on 'The rise and fall of strategic planning'. He contends that 'the failure of systematic planning is the failure of systems to do better than, or nearly as well as, human beings'. He went on to say that:

  Far from providing strategies, planning could not proceed without their prior existence… real strategists get their hands dirty digging for ideas, and real strategies are built from the nuggets they discover… sometimes strategies must be left as broad visions, not precisely articulated, to adapt to a changing environment.

  Other writers have joined in thisCHOrus of diSAPproval, for example:

  Business strategy, far from being a straightforward, rational phenomenon, is in fact interpreted by managers according to their own frame of reference, their particular motivations and information (Pettigrew and Whipp, 1991).

  Although excellent for some purposes, the formal planning approach emphasizes 'measurable quantitative forces' at the expense of the 'qualitative, organizational and power-behavioural factors that so often determine strategic success'… Large organizations typically construct their strategies with processes which are 'fragmented, evolutionary, and largely intuitive'. Quinn (1980)

  The most effective decision makers are usually creative, intuitive people 'employing an adaptive, flexible process'. Moreover, since most strategic decisions are event-driven rather than pre-programmed, they are unplanned. Digman (1990)

  Goold and Campbell (1986) also emphasize the variety and ambiguity of influences that shape strategy:

  Informed understandings work alongside more formal processes and analyses. The headquarters agenda becomes entwined with the business unit agenda, and both are interpreted in the light of personal interests. The sequence of events from decision to action can often be reversed, so that ‘decisions’ get made retrospectively to justify actions that have already taken place.

  Mintzberg (1978, 1987, 1994) summarizes the non-deterministic view of strategy admirably. He perceives strategy as a 'pattern in a stream of activities' and highlights the importance of the interactive process between key players. He has emphasized the concept of 'emergent strategies', and a key aspect of this process is the production of something that is new to the organization even if this is not developed as logically as the traditional corporate planners believed to be appropriate.

  Kay (1999) also refers to the evolutionary nature of strategy. He comments that there is often little ‘intentionality’ in firms and that it was frequently the market rather than the visionary executive which chose the strategic match that was most effective. Quinn (1980) has produced the concept of ‘logical incrementalism’ that suggests that strategy evolves in several steps rather than being conceived as a whole.

  A fourfold typology of strategy has been produced by Whittington (1993):

  1. Classical – strategy formulation as a rational process of deliberate calculation. The process of strategy formulation is seen as being separate from the process of implementation.

  2. Evolutionary – strategy formulation as an evolutionary process, which is a product of market forces in which the most efficient and productive organizations win through.

  3. Processual – strategy formulation as an incremental process that evolves through discussion and disagreement. It may be impossible to specify what the strategy is until after the event.

  4. Systemic – strategy is shaped by the social system in which it is embedded. Choices are constrained by the cultural and institutional interests of a broader society rather than the limitations of those attempting to formulate corporate strategy.

  Comment

  This case study can be used to explore the nature of strategy in relation to its context, which includes the type of activity and people in the organization, the degree of turbulence in the environment and, as is evident in this case, the personalities of those involved, especially the Chief Executive. For HR specialists the case can be used to emphasize the contingent nature of HR strategy, the pressure for flexibility (typical in many if not all organizations, not just NHS Trusts) and the need to be sensitive to the environment and the people involved. A strategic approach is not just about following a number of well-established rules.

  關鍵詞:勞動合同 勞動糾紛案例

   企業與員工未及時續簽勞動合同,而員工繼續在企業工作。等該員工離職時,提起勞動仲裁,要求企業支付未簽訂書面勞動合同的2倍工資,勞動仲裁委和法院最后會怎么處理呢?

  相信遇到這樣情況的企業還不在少數。我們通過下面由HR案例網分享的案例來看看究竟會如何處理。

  

  【案例詳情】

  小曾于2022年9月入職某管理咨詢服務公司,雙方簽訂有期限自2022年至2022年、2022年至2022年的兩份勞動合同書,此后未再續簽勞動合同。雙方勞動關系于2022年8月30日解除。小曾月工資標準為6500元。公司主張,因小曾拖延未能續訂勞動合同,并提交了微信對話記錄,顯示公司于2022年7月19日,要求小曾續簽勞動合同。小曾稱,公司僅以此通知過續簽勞動合同。

  小曾于2022年8月30日離職之后,向當地勞動人事仲裁委申請勞動仲裁,勞動人事仲裁委裁決:確認公司與小曾2022年9月20日至2022年8月30日存在勞動關系,公司支付2022年9月20日至2022年8月30日未簽訂勞動合同雙倍工資差額68000元,駁回小曾的其他仲裁請求。

  隨后公司不服,向當地法院提起訴訟。法院審理后的判決與仲裁委一致。公司隨即上訴,二審法院維持原判。

  公司在法院審理過程中強調小曾屬于惡意“碰瓷”,公司人力資源部經理曾經反復多次與其商談續簽勞動合同事宜,小曾故意拖延。公司本著人性化管理的角度才一直沒有與小曾解除勞動關系,一直到他自己提出離職。

  雖然公司提出了這樣的理由,可無法提供相應的證據。唯一的一條證據還是2022年7月的一次微信對話記錄,并不能證明公司曾經多次與小曾協商續簽勞動合同。

  故二審法院沒有采納公司的上訴請求。

  【案例分析】

  我們從上面案例可以學習到及時與員工續簽勞動合同是一件非常重要的事情,馬虎不得,一定要有專人進行管理。一旦出現員工有意拖延的狀況,hr要及時收集、固定證據,只有這樣才能將企業所面臨的的相應風險降低。

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