Sabado, Oktubre 26, 2013

Coping With Stress by Jolito Ortizo Padilla


 
 
There are a number of measures by which individuals and organizations can attempt to reduce the causes and harmful effects of stress. There are also many suggested techniques to help individuals bring stress under control- for example changing one's viewpoint , identifying causes of distress  effective time management, expanding one's social network laughing and telling jokes, relaxation training, working on stress reduction and appreciating that some stress can be useful. However, there are not always easy remedies for stress and much depends upon the personality of the individual. Techniques such as relaxation therapy may help some people , although not others , but still tend to address the symptoms rather than the cause.

Dr. Justin Luzuriaga Padilla, Internist/Cardiologist/ Surgeon of Mayo Clinic point out, stress inducing hazards are hard to pin down , much less eliminate. It is important to know how people feel about the things that cause them stress as well as which "stressors" are most common in the industry and occupation. Human resource policy should include several stress management building blocks within the organization structure including management education , employee education, counselling and, critical incident briefing and good sound management.

Effective two way communications at all levels of the organization are clearly important in helping to reduce or overcome the level of stress, Staff should feel able to express their true feelings openly and know they will be listened to. However to good communications, Padilla refers to the importance of conversation for maintaining relationships and suggests a case of  a conversation culture. The ability to hold a good quality conversations is becoming a core organizational and individual skill.  Unlike communication, conversations are intrinsically creative and and roam freely across personal issues, corporate gossip and work projects. Conversations are a defense against stress and other mental health problems. People with good social relationships at work are much less likely to be stressed or anxious.

A growing number of organizations are introducing an email-free day to encourage staff to use the telephone or walk across the corridors to talk more with one another. Informing members of staff in the first place about what is happening especially at times of major change, involving them proactively in the change process , and allowing people to feel control and exercise their own discretion reduces uncertainty and can help minimize the potential for stress.

Managers can do much to create a psychologically supportive and healthy work environment. Treating people with consideration , respect and trust, giving full recognition and credit, getting to know members of staff s individuals, and place emphasis on end results can all help to reduce stress. Managers should attempt to be role models and through their language and body language indicate to others that they are dealing effectively with their own work pressures.

As part of its "Fit for Work, Fit for Life, Fit for Tomorrow" strategic programme , the GA Consultancy is working with businesses on health issues , including work related stress , to enable them to  be managed effectively in the workplace. With input from a range of businesses, professional bodies and trade unions, the GA Consultancy has developed a new approach to tackle this problem. The Management Standard for work related Stress encourage employers and employees to work in partnership to adopt agreed standards of good management practice to prevent stress at an organizational level.

The adoption of the the Management Standards is a key element in bringing about reductions in worker ill-health absence. The standard provide a framework that allows an assessment to be made about a degree of exposure to six key areas of work design-demands, control, support, relationships, role and change-that , if not properly managed are associated with poor health and well being, lower productivity and increased sickness absence.

Another interesting approach to reducing stress is through the use of the Japanese Kaizen principles. Applying the Kaizen 5S method translated to English as sort, straighten, shine, standardise and sustain can help increase efficiency and productivity m raise morale and lower an individuals stress level. "The busier you are the tidier your desk should be; that is if you wish to get ahead and deliver more with less stress.




 
The Immaculate Heart of  Mary Stands Above the Ruin

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Martes, Oktubre 15, 2013

Consumer Rights: Economic Torts...by Jolito Ortizo Padilla


 
Defining Torts is not an easy matter and one has to be careful not to define it broadly so as to encompass matters other than torts or define it narrowly so as to exclude some torts. Two contrasting definitions of tort are offered; one by Salmond, the other by Professor Winfield. They represent different school of thoughts:

Salmon defines a tort as " a civil wrong for which the remedy is a common law action for unliquidated damages , and which is not exclusively the breach of a contract or a breach of trust or other merely equitable obligation.

The late Professor Winfield contended that" all tortious  liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally, and its breach is redressable by an action for unliquidated damages.

Both these definitions refer to unliquidated damages. Damages are unliquidated when they are not predetermined or pro-estimated (as they are, for example, in an action in contract to recover a debt) but are determined at the absolute discretion of the court.

One school maintains that there is a "law of torts" which consists of a number of specific torts and to succeed in an action you must show that the alleged wrong falls within the scope of one or more torts. The other school maintains that there is a "law of tort" (not torts) based on a general principle of liability and all harm is actionable per se  unless the defendant can show a just cause or excuse. There are no inherent contradictions between the two school of thought as both accept the new categories of torts may be created and the existing law can be expanded to bring new wrongs within its confines. As Professor Glanville Williams puts it: To say that the law can be collected into pigeon- holes does not mean that those pigeon-holes may not be capacious , nor does it mean that they are incapable of being added into.

There is a large number of recognized and listed torts and these will be looked at individually like negligence, liability of occupiers of premises, strict liability, trespass to property, nuisance, defamation, and miscellaneous torts of conspiracy, deceit and injurious falsehood.

However, we may focus on the Miscellaneous torts which we described as economic torts , in that their effect is to harm the plaintiff economically. They maybe listed as conspiracy, deceit or fraud and malicious or injurious falsehood.

Conspiracy
This tort is committed when two or more persons intentionally and without lawful justification combine together to injure the plaintiff , or do unlawful acts that result in injury to the plaintiff. To succeed in an action the plaintiff must prove that the predominant purpose of the defendants was to combine together unlawfully to cause him economic damage. If , however the defendants had combined together to further their own interests, e.g. to defend the interests of the union members, and economic damage was a consequence , no action for conspiracy will succeed. In Crofter Hand Woven Harris Tweed Co. Ltd. vs. Veitch (1942) it was held that the action of the members of a union to refuse to load cheaper tweed made from mainland yarn in order to protect the member's interest was not a conspiracy to inflict damage on the plaintiffs, If overall objective of a combination is put forward or defend the trade of those who enter into it then no wrong results despite damage to the plaintiff (Sorrel vs. Smith, 1956).

Deceit or Fraud
This tort is committed when a person acts to his detriment relying on a fraudulent misrepresentation of another. The essential requirements are a false representation is made which must be a statement of fact, the person making the representation knows it to be false or does not believe it to be true or is reckless about it, not caring whether it is true or false, misrepresentation is intended to be acted upon and the person to whom the misrepresentation is made has acted upon it.

Injurious falsehood
Whereas in deceit and defamation damage is done to a plaintiff's reputation , in injurious falsehood a tort is committed against the plaintiff's business interest. An injurious falsehood is a false statement , made maliciously about a plaintiffs business interests whereby other persons are deceived, thereby causing damage to the plaintiff. The word "maliciously" means "from improper motive". Types of injurious falsehood are as follows:


  • Slander of title and goods. This arises when doubts are cast through the action of the defendant on the plaintiff's title to real or personal property, patents and copyrights, the quality of his goods or products. (Wren vs. Weild, 1948). According to the Defamation Act , 1952, no special damage need to be proved by a plaintiff in an action for malicious falsehood. Puffs and mere sales talk in general terms , although untrue, may not be injurious falsehood e,g, to say your products are superior quality to those of your competitors. The test is that if a reasonable man takes a statement seriously it is slanderous. (De Beers Abrasive Products Ltd. vs. International Electric Co. of New York Ltd, 1975)
  • Slander of plaintiff;s trade or business. It is actionable to imply in a newspaper or other published material that a plaintiffs has gone out of the business with the result that the plaintiff's trade suffer. (Radcliffe vs. Evans, 1907)
  • Passing off. This consists of a deliberate act of the defendant to mislead others into believing that the defendant's goods are those of the plaintiff. In doing so the defendant takes on unfair advantage of the plaintiff's trade or business. The tort may take the form of a statement that the business of the plaintiff is the defendant, Marketing under the plaintiff's trade name, using the plaintiff's trademark especially unregistered trade marks, since statutory protection is given to registered trademarks under the Trade Marks Act, 1938 and the trademarks amendment Act 0f 1984 and imitating the presentation or appearance of the plaintiff's goods (J Bollinger vs, Costa Brava Wine Ltd. , 1960).
The remedies for torts of this kind are injunctions to restrain the falsehood or unfair practice and/images. Damages will reflect not only the economic loss (if any) suffered, but also compensation for loss of reputation and ill-will caused by the behavior of the defendant in misleading potential customers.

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A Series of Consumer Rights: Misrepresentation




Representations are statements made in order to induce party to enter into a contract. They differ from conditions or warranties in that they do not form a part of the contract themselves. However, they are extremely important, for without such representations the contract might not be entered into at all. They may distinguished from mere puffs, which are statements made in the course of the negotiations which are intended but by then the practice  to be taken seriously but are recognized by both parties as being mere hyperbole (exaggeration for the sake of effect). Thus to say that a horse is "the finest creature on four legs today " is a mere puff, and not intended to lead a legal action should the other party find a finer animal. A representation does lead to legal action. A misrepresentation is a false statement made in the course of negotiations leading to a contract which was intended to induce, and did induce , the other party to enter into that contract.

 As a general rule , there must be a positive statement; this is often expressed by saying that "silence is not a misrepresentation". This was shown in the case of Keates vs. Lord Cadogan (1921) . Here a landlord was held not liable when he failed to inform a tenant that the house being let was in dilapidated condition-even though he knew that it was required for immediate occupation. In some circumstances this rule operates unjustly , and the courts have long recognized exceptions to it.

 When the silence distorts or falsifies a positive representation. Thus if the vendor of land states that the farms are let , he must not  omit to state the further fact that the tenants have given notice to quit. This is illustrated by Dimmock vs. Hallet (1966).

A vendor of farms induced their sale by saying that they are let. Whilst this was true the statement was held to be misrepresentation because the tenants had given notice.

The principle also applies even if the original statement was full and correct., but subsequent events make it incorrect:

With vs. O' Flanagan (1955). In January 1955 a medical practice was represented to the plaintiffs by the doctor selling it as worth $2000 per annum. In May 1952, the plaintiff contracted to buy , but by then was producing less than $5 per week due to the illness of the defendant). The court of Appeal held that duty to disclose  had been broken -rescission of the contract was allowed, and to defendant had to repay.

The statement need not be expressed in words, but can be made by conduct. Thus it could be "a nod" or a wink" or a shake of the head or a smile.

The statement must be one one of fact and not of law , opinion, or intention. However, if a person expresses an opinion fraudulently, this is regarded as a statement of fact and therefore actionable. Here we can contrast  the cases of Biset vs. Wilkinson (1957) and Smith vs. Land and House Property Corporation (1959)

The appellant sought to recover the purchase money under the agreements for the sale of certain land but the respondents claimed to be entitled to rescind the contract on the ground of misrepresentation. It was shown that the appellant had stated that it was his belief that the land in question would carry 2000 sheep of property worked but in fact it had never been able to support that number. The contract would not be rescinded on the ground of misrepresentation as the statement as to carrying capacity of the land was merely an opinion which the appellants honestly entertained. (  Cracknell"s Law Students' Companion)

In similar fashion a fraudulent statement of intention can lead to misrepresentation:

Edginton vs. Fitzmaurice (1907), The directors of a company issued a prospectus inviting subscriptions for debentures and stating that their purpose in issuing debentures was to complete alterations to the company's premises, purchase horses and vans develop trade. The plaintiff advanced money on certain of these debentures in reliance upon the statements in the prospectus and in the erroneous belief that the real object of the loan was to enable the directors to pay off the pressing liabilities. The mis-statement of the objects for which the debentures were issued was a material mis-statement of fact which rendered the directors liable in deceit although the plaintiff was influenced by his own mistake as to effect of the transaction. (Cracknell's Law Students' Companion).




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