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October 27, 2016June 27, 2024

Older Workers – benefits and challenges

While today’s workplace is unique because it is represented by five generations of workers, research indicates that the number of older workers in Canada, is increasing.

In 2011, 42.4% of the working-age population in Canada was 45—64 years old and employees over the age of 55 will comprise 18—20% of the workforce in 2021.

While this ageing workforce presents several challenges to employers, there are also certain benefits that come with having older workers in the workplace.

Advantages of Older Workers

Older workers have Institutional knowledge and corporate memory. As a result, they know “how things work” and “how to get things done”. Other advantages include the fact that older workers:

are more stable and more likely to stay on with the same employer;
are conscientious;
require less supervision;
produce a higher quality of work, because they know the job well; and
have a good work ethic

Challenges of an Ageing Workforce

Increased wages – generally older employees have more seniority and get higher salaries than newer, younger workers.
Age related physical and mental decline – as employees age they are likely to have more health issues.
Tension between older workers and younger workers.
Performance issues related to new ways of doing things and a reluctance on the part of older workers to accept change.
Discomfort with new technologies.
Reluctance on the part of employers to train older workers.

Key Issues

In addition to the challenges described above, some of the key issues that employers need to think about in the context of the ageing workforce, relate to:

human rights and accommodation
benefits
severance
succession planning
retention

Human Rights

While many employers are reluctant to hire older employees because of the increased costs of benefits and wages, employers must be careful not to discriminate against older employees when they are making decisions around hiring, promoting, or terminating employees.

This does not mean that an employer can never terminate an older worker, or that an employer must always hire, or promote, an older worker over a younger worker. It does mean, however, that an employer must be able to defend its decision, if the decision is challenged.

With the elimination of mandatory retirement in BC on January 1, 2008, requiring an employee to retire when he/she reaches a certain age, would also amount to discrimination except in certain limited situations, for example, if the employee is working in a safety sensitive position.

October 6, 2016June 27, 2024

How to Create a Respectful Workplace

A respectful workplace is more than the absence of discriminatory behavior. In a respectful workplace, each person can contribute his or her best, knowing that these contributions will be valued. In a respectful workplace, employees and management work to support one another.

A respectful workplace:

is inclusive;
values diversity;
communicates behavioural expectations clearly; and
promotes employee health and safety.

Why is respect important?

Respect is important in an organization because respect helps to build trust and encourages people to work together. In turn, this leads employees to become more engaged resulting in employees becoming invested in the success of the organization.

When employees work in a disrespectful environment, it can result in anxiety, distrust, disengagement, avoidance, negativity, increased absenteeism, etc.

Why do people engage in disrespectful behaviour?

Disrespectful behaviour can stem from a number of reasons such as learned behaviour, not realising that the behaviour is unacceptable and insecurity. Sometimes, organizations enable disrespectful behaviour by turning a blind eye, because:

the person is a “star”
management wants to avoid conflict
management does not know how to deal with the situation
of the belief that things will “blow over” if left alone
there are no policies in place to address the problem

Tips for respectful behaviour in the workplace

Know your “hot buttons”
Listen actively
Ask questions respectfully
Talk to people directly about concerns
Don’t “put down” people
Ask yourself if you have biases or “blind spots”

February 23, 2016June 27, 2024

Unjust Dismissal – Federally regulated Employees

The Canada Labour Code

Federally regulated employees are subject to the provisions of the Canada Labour Code (the “Code”). Section 240( 1) of the Code permits a federally regulated employee who is dismissed to make a written complaint to an inspector if the employee feels that the dismissal is unjust, provided:

the employee has completed 12 consecutive months of employment;
is not subject to a collective agreement; and
is not excluded due to managerial status.

Making a complaint pursuant to Section 240(1) of the Code does not preclude an employee from pursuing a wrongful dismissal claim in the courts.

Wrongful Dismissal Claim

The common law permits an employer to terminate an employee without cause provided the employer gives the employee reasonable notice of termination or payment in lieu. If an employee is terminated without reasonable notice and claims a wrongful dismissal , the court does not concern itself about the “justness” of the dismissal. Instead, the court will determine what the reasonable notice should have been and will award damages accordingly.

Unjust Dismissal

The concept of unjust dismissal under the Code is different from, and broader than wrongful dismissal.

Under the Code, a person can make a written complaint regardless of whether he or she is paid severance or given notice in lieu. Consequently, a dismissal can still be “unjust”, even if an employer has given the dismissed employee notice or pay in lieu of notice. This is because the underlying purpose of unjust dismissal is to protect the personal dignity and autonomy of the individual employee in termination situations.

in order for a termination to be “just”, an employer’s decision must be:

rational;
made in good faith;
made in a non-arbitrary and non-discriminatory manner; and
made in a procedurally fair manner

The unjust dismissal provision does not apply in situations where an employee is laid off as a result of shortage of work or a discontinuance of the job function. Nevertheless, a dismissed employee can challenge the elimination of the position itself i.e., that the real reason was to get rid of the employee.

The remedies available to an adjudicator who concludes that a dismissal is unjust includes the authority to reinstate an employee. Other remedies include ordering the employer to pay damages or making any other equitable order that will remedy the unjust dismissal and protect the personal dignity of the employee.

Employer Tips

While it may not be possible to prevent an employee from filing an unjust dismissal claim, employers can take steps to minimize a finding that a dismissal is unjust by:

having a fair reason for the termination and telling the employee (preferably in writing), the reason( s) for the termination;
acting reasonably and following a fair procedure when dismissing the employee;\
giving the employee as much notice as possible;
not using lack of work as an excuse to get rid of an employee;
not alleging just cause if not terminating for cause; and
making a reasonable severance offer in return for a general release of all claims.

The above suggestions are not exhaustive and employers should seek legal advice before dismissing an employee, if they think the employee is likely to file an unjust dismissal claim.

November 15, 2015June 27, 2024

Transgender and the Workplace

A growing number of private sector employers are now starting to include gender identity and expression in their non-discrimination policies. However, issues of gender identity and expression still remain uncharted territory in many workplaces. As a result, employers and employees could engage in practices that discriminate against transgender persons.

In order for workplaces to be truly inclusive of transgender persons, it is important for employers to understand what transgender means. According to the American Psychological Association, it is a broad term that encompasses people whose gender identity is different from their assigned one and includes genderqueer, androgynous, multi-gendered, gender nonconforming and third gender. Once this understanding is in place (through inquiry, education and training), it will become easier for employers to consider and address transgender issues in the workplace.

Key issues that employers should turn their mind to, include:

– washroom access;
– attire;
– leave benefits;
– extended health benefits for gender reassignment related surgery;
– how to properly address the transitioning employee;
– providing education and training to co-workers and clients;
– proactively monitoring the workplace to spot and promptly address signs of discrimination; and
– listening and addressing concerns of co-workers.

A transitioning employees who wishes to come out, should consider:

– having a plan in relation to the coming out process;
– involving human resources with regard to timelines relating to the transitioning plan;
– considering how the employee wishes to come out to colleagues and clients; for example will the employee tell people themselves or would they like HR support?
– informing HR about specific needs/issues such as washroom access, name changes on official documents, health benefits for surgeries, time off for surgeries, etc.; and
– how much information they wish to share with colleagues.

July 13, 2015June 27, 2024

Heather Hettiarachchi Interviewed by The Province about Bullying and Harassment

Heather Hettiarachchi Interviewed by The Province about Bullying and Harassment.

October 4, 2014June 27, 2024

The Disengaged Employee

According to the 2014 Global Workforce Study conducted by Towers Watson, which covers responses from over 32,000 employees across a range of industries in 26 markets around the world, only four in 10 employees are highly engaged and 24% (almost a quarter) of employees are disengaged.

While highly engaged employee are passionate about their work and feel connected to the workplace, disengaged employees, even those who do actually show up to work, are uninterested in what they do and will just go through the motions at best and at worst, will “act out” in ways that undermine the workplace.

The Towers Watson survey findings indicate that effective leadership and management are critical for sound employee engagement, with the key characteristics of effective leadership being the ability to inspire and motivate and the key characteristic of an effective manager being the ability to “walk the talk”. The survey found that other characteristics of an effective manager include: the effective removal of obstacles to employee success, treating employees with respect, clearly communicating goals and encouraging innovation.

One of the most common reasons for employee disengagement is the feeling that the organization does not value him/her. If an organization fails to acknowledge and recognize an employee’s efforts and contribution, this can leave the employee feeling empty and undervalued. In turn, this can cause a previously loyal and engaged employee to become disinterested and disengaged. Failure to suitably acknowledge and recognize an employee’s efforts can include ignoring the employee, not giving the employee a salary increase or giving the employee a nominal increase, measuring the employee’s contributions based on unrealistic goals and refusing to consider the employee for a promotion.

Disengaged employees can and do hurt an organization’s “bottom line” because they are less productive than those who are connected to the workplace and who feel that they are an integral part of the organization. Worse still, some disengaged employees will actively undermine the workplace by engaging in negative behaviours such as taking excessive sick leave, being tardy, spreading gossip and generally working against management.

The bottom line is that employees need to feel valued in order to be fully engaged in the workplace. If they are not heard, not recognized and often overlooked, they will not be engaged.

May 27, 2013June 27, 2024

Temporary Foreign Workers in Canada

On May 21, 2013, the Federal Court of Canada dismissed a challenge brought by two unions in respect of the hiring of 201 foreign nationals by HD Mining International Ltd., a British Columbia based mining company.

The unions argued that HD Mining’s hiring of the temporary workers from China to work on its ‘Murray River Project’ in Tumbler Ridge, British Columbia, under the Temporary Foreign Worker Program (TFWP), would have a negative impact on the Canadian labour market and that it would result in jobs being taken away from well-qualified Canadians.

The Court’s dismissal of the Unions’ application is a victory for HD Mining and other employers who are bringing in foreign nationals to Canada under the TFWP and a significant blow to organized labour as well as non-union employees.

It is estimated that the number of foreign nationals temporarily working in Canada is currently around 300,000.

To read more, click on the following link: ~~http://www.cwilson.com/resource/newsletters/newsletter/6-work-place-post.html~~

May 14, 2013June 27, 2024

Collective Bargaining Rights – DOXA documentary Film Festival

I was a panelist at this year’s DOXA Documentary Film Festival and spoke at the screening of “We Are Wisconsin“, on May 8th. My co-panelist was Holly Page, BCGEU.

“We are Wisconsin” is a documentary about massive public protests against Governor Scott Walker’s attempts to do away with collective bargaining rights in the state of Wisconsin in 2011.

The film was presented as part of the Justice Forum, a program that offers the public a means of engaging directly with global justice issues through discussion of the films presented at the festival.

I presented my views on the film and spoke about the judicial and governmental attitudinal differences in Canada and the U.S. towards collective bargaining rights and unionized workers.

After the presentations, Holly and I answered questions from the audience about collective bargaining rights and issues facing unions.

August 23, 2012June 27, 2024

Working Notice

In Canada, in the absence of just cause, an employer must give an employee notice or payment in lieu of notice if the employer wishes to terminate the employment relationship.

When an employer gives an employee notice of its intention to terminate the employment relationship, this is typically in the form of “working notice” i.e., the employee is required to work through the notice period.

In this post, I provide a brief overview of the legal requirements relating to working notice.

The employer should ensure that the working notice is clear and unequivocal and that the notice is in writing. If the notice is not in writing, it would violate Section 63 of the Employment Standards Act (the “ESA“).
If an employer permits an employee to work beyond the notice period, the notice is ineffective under Section 67(1)(b) of the ESA and the employee would be entitled to a new statutory termination notice period or pay in lieu.
An employer must not alter the terms and conditions of the employee’s employment during the working notice period as it would amount to a constructive dismissal.
During the working notice period, an employee must continue to perform all of his/her duties as he/she normally would. However, it is customary for an employer to permit an employee to take a reasonable amount of time off for the purpose of attending job interviews, etc.
If an employee brings an action for wrongful dismissal during the working notice period he/she will have repudiated the employment agreement.
If an employee resigns during the working notice period, the employer does not have to pay the employee for the balance remaining period.
If an employer terminates an employee for just cause during the working notice period, the employee will not be successful in claiming damages for wrongful dismissal.
Once an employer gives working notice, it cannot unilaterally amend or retract the notice. In Elderfield v. Aetna Life Insurance Co. of Canada [1996] B.C.J. No. 1817, the employer gave the employee notice which suggested that the employer would provide a severance package or provide alternative work. Because this notice was unspecific and equivocal, the employer subsequently tried to give proper, specific and unequivocal working notice. The employee refused to accept the subsequent notice and brought an action. The court held that the employee was entitled to bring a claim for damages and that an employer could not unilaterally re-elect to provide additional working notice.
If the employer gives insufficient working notice, this would amount to a breach of the employment contract and the employee is entitled to sue for wrongful dismissal. The damages in this situation will be the reasonable notice period minus the working notice given: Giza v. Sechelt School Bus Services Ltd., 2012 BCCA 18.
An employer can offer a terminated employee another position in mitigation of his/her damages: Evans v. Teamster Local Union No. 31, [2008] S.C.J. No. 20. If an employee refuses to accept the alternative position, the court could reduce the amount of damages that the employee would otherwise have received on the basis that the employee failed to mitigate his/her losses. In these kinds of situations, the question is whether, viewing the matter objectively, a reasonable person would have accepted the opportunity to mitigate his/her damages by accepting the job offered by the employer.

In a future post, I will discuss the concept of “garden leave” i.e., the employer gives the employee notice that his/her employment will be terminated but tells the employee to stay at home even though the employee is provided with full pay for the duration of the notice period.

August 14, 2012June 27, 2024

Effective Performance Reviews

Many organizations conduct performance reviews. Typically, the reviews are completed by an employee’s immediate supervisor with little or no input from the employee. The employee is then provided with formal “feedback”, normally once every year, at a peformance review meeting.

Sadly, some supervisors view the annual performance review as an opportunity to seek out and provide negative feedback. With these supervisors, the annual review is conducted much the same way as being hauled off to the principal’s office. Communication is one way, with the employee receiving “feedback”, more often than not for the first time, of what he/she has done wrong throughout the year. Often, the “feedback” is non-specific and simply a reflection of the supervisor’s opinions. “Goals” are then set for the next year based on this “feedback” with little or no input from the employee.

On the flip side of the negative review supervisor, is the supervisor who rates all employees as outstanding, regardless of actual performance. These supervisors are uncomfortable with conducting reviews and fear that they will be unpopular with their staff if they provide any kind of constructive feedback. When this approach is adopted, it allows performance issues to go unaddressed for years and permits “problem” employees to flourish at the expense of the organization’s bottom line and the morale of productive employees.

While performance reviews are an invaluable tool for evaluating how employees are doing and for encouraging employees to improve and excel, poorly done reviews are counter productive and harmful to an organization.

The subject of my Masters thesis was effective performance appraisal. However, because it is a complex and voluminous topic, it is not possible to explore it fully in a blog. However, I hope that the following tips will be useful to organizations and supervisors.

Do’s

Before introducing a formal performance review system, ask why your organization needs it and what the organization hopes to achieve, then tailor the appraisal system accordingly. Don’t conduct performance appraisals just because everyone else is doing it.
Research the different appraisal methodologies carfully and pick one that best suits the goals that the organization hopes to achieve. If no one methodology is suitable, design (or hire an expert to design), a system that will work for your organization.
Train and coach the managers and supervisors who will be conducting the performance reviews so they know what the organization expects out of the appraisal system.
Try to implement a review system that allows for meaningful employee input and two-way communication.
Encourage supervisors and managers to give timely and specific feedback on an ongoing basis without waiting for the formal review. That way, performance issues can be addressed as they arise without an annual laundry list being dumped on an employee at the formal review.
Provide the feedback in a constructive manner. Don’t criticize. Remember that the purpose of giving constructive feedback is to improve performance.
Once legitimate issues are identified, ensure that the employee has the proper tools, training and coaching needed to address the identified issues.

Don’t

Generalize or give feedback that is vague. Avoid language such as “everyone says”, you “always”, you “never” etc., Be specific and provide examples of any concerns that you have. If you provide specific examples, the employee will be able to see and understand your concerns. Vague feedback is meaningless and confusing and will only result in alienating the employee.
Stint on praise. Give praise where praise is due. Again, provide specific examples. Don’t just say “you are doing a great job”.
Wait for the formal performance review to provide feedback. In order to be effective, feedback must be specific and timely. Telling an employee one year or several months down the road that “everyone is complaining about X” is not only useless, it is counterproductive.

With the Olympics fresh in our minds, a good analogy is for supervisors to think of themselves as coaches and the employees whom they supervise, as athletes. Just as a coach will not wait a year or several months or several days to tell an athlete that he/she is doing something incorrectly or to praise an athlete for something that he/she is doing well, a supervisor should not wait until the annual performance review to provide feedback. Feedback, both positive and constructive, should be provided on an ongoing basis for it to be effective and for an organization to obtain maximum performance from its employees.

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