Experts guide HR on employment, labour issues
There are many topics and situations that HR practitioners would rather not have to deal with: violations of employment standards, employee addictions, privacy dilemmas, labour disputes and performance problems requiring disciplinary steps, to name a few.
When they do arise, it’s helpful to have reliable resources available. The titles reviewed in this column take a look at these subjects and provide frameworks and pointers from experts. Many practical questions are answered in these books along with danger signs that indicate a need for in-depth legal or procedural advice.
Views From the Front: Critical and Current Issues in Employment and Labour Law
By Sharon Chilcott et al, 203 pages, Thomson Carswell (2006), ISBN 0-459-28274-3.
(416) 609-3800, (800) 387-5164, www.carswell.com
There have been significant changes in employment and labour law in recent years. Views from the Front “is intended to get you interested in the current place of employers on the long and winding road of employment law and labour relations in Ontario (and more generally, Canada)” and to help “point out the speed bumps and potholes yourselves, so that you can navigate your way with a clear vision and know when you need a guide.”
The first part of the book deals with legislative changes in Ontario’s Occupational Health and Safety Act and Employment Standards Act including ticketing and new liabilities for employers.
A chapter on the aging workforce and abolition of mandatory retirement deals with changing policies, demographics, hiring policies and options for downsizing as well as avoiding age discrimination and the duty to accommodate.
Other legislative areas surveyed include human rights (an employer’s right to medical information in the accommodation process), privacy issues and surveillance and amendments to the Labour Relations Act (“restoring balance and fairness or increasing union organization?”)
The second part of the book provides an overview of some “hot topics” and related adjudication including:
•wrongful dismissal including termination for cause, constructive dismissal, punitive and Wallace damages;
•arbitration standards and outcomes in key cases concerning harassment allegations, Ontario health premium payments and an employer’s request for an independent medical examination;
•new addictions, such as gambling and pornography, and the difference between accommodation and mitigation; and
•legal and HR responses to public health emergencies, including a SARS case study and extensive consideration of legal and policy implications of a disease outbreak.
Ontario legislative provisions, key court and arbitration decisions, references to reports and websites and a detailed index make this a valuable source for practitioners. The authors, all lawyers with the firm Filion Wakely Thorup Angeletti LLP, also provide commentary, checklists and practical management considerations on the issues.
On Strike – and How to Prevent Getting There
By Stewart Saxe and Kevin Coon, 72 pages (Canadian Manufacturers and Exporters, 2006),
(905) 672-3466, ext. 257, [email protected]
This is a brand new edition of the manual from Canadian Manufacturers and Exporters advising employers of the legislative changes and practical considerations entailed in handling a work stoppage. The authors, experts with the law firm Baker and McKenzie LLP, are based in Ontario, but the book touches on key points of legislation in all jurisdictions, both provincial and federal.
While management’s rights and responsibilities under the law form the main focus, the authors also “stress the desirability of good communication, flexibility and judgment as part of the employer’s effort to avoid strikes wherever possible.”
Readers will find a pragmatic, detailed guide organized as follows:
•an introduction with a note on lockouts;
•the context of collective bargaining;
•being ready, shutting down operations;
•preconditions to a legal strike;
•communications with government, employees, the union, the public, customers and suppliers;
•shipping and receiving;
•property protection;
•relations with both striking and non-striking unions;
•strike settlement agreements;
•first agreement arbitration;
•payroll and benefits;
•non-bargaining unit personnel;
•guidelines on picketing, strike protocols and secondary picketing;
•injunctions;
•illegal strikes;
•preventing strikes; and
•detailed coverage of strike related employment insurance issues.
The authors consider both legal issues and good employer practices, emphasizing “responsible steps that management should consider — not to provoke or encourage strike action, but rather to prepare for and manage in the face of a strike, should it occur.”
Discipline Without Punishment
By Dick Grote, 258 pages, Amacom (2nd edition, 2006), ISBN 0-8144-7330-X
This is an update of the 1995 classic outlining “the proven strategy that turns problem employees into superior performers.”
In his industrial experience, Grote said the traditional disciplinary model (coaching, oral warning, written warning, suspension without pay, final warning, probation and termination steps) “produced nothing but belligerence, resentment and sabotage.”
That traditional model failed on many counts:
•supervisory inconsistency in application of the policy;
•supervisory hesitation to act until the situation becomes serious;
•employee complacency as they get used to punishment; and
•longer term side effects such as anger, apathy and resentment which undermine any short-term gains obtained.
Grote developed a new approach that is not punishment-oriented, but nevertheless is progressive and anything but soft and fuzzy. It begins with positive contacts to discuss performance improvement, then moves to formal reminders and finally to a “decision-making leave” — usually one day with pay. This is the final step in the disciplinary process, after which the employee must declare his intention to resolve the performance problem or leave the company.
Termination is thus framed as an action taken after the entire disciplinary process has run its course, rather than as a disciplinary step in itself. However, this point is not as simple as it appears. It’s embedded in a comprehensive discipline-without-punishment philosophy and policy framework.
Part one provides a foundation for building superior performance through examining many ways to recognize good performance and the ineffectiveness of the “treat everybody alike” manager. The new approach to discipline makes a significant shift of responsibility from managers to employees.
Part two outlines in detail 10 steps for preparing and conducting a performance improvement discussion.
Part three deals with the “mechanics” of discipline without punishment including the decision-making leave, discharge, solving attendance and attitude problems and the administration of the overall process including all policy and procedural aspects.
The final chapter describes how to create a discipline without punishment system, integrated HR policy development, ownership and leadership for the process, change management, communication and implementation steps.
Ray Brillinger is a certified management consultant who helps organizations with change management, HR strategy and performance improvement. He can be reached at (416) 766-9580 or [email protected].
When they do arise, it’s helpful to have reliable resources available. The titles reviewed in this column take a look at these subjects and provide frameworks and pointers from experts. Many practical questions are answered in these books along with danger signs that indicate a need for in-depth legal or procedural advice.
Views From the Front: Critical and Current Issues in Employment and Labour Law
By Sharon Chilcott et al, 203 pages, Thomson Carswell (2006), ISBN 0-459-28274-3.
(416) 609-3800, (800) 387-5164, www.carswell.com
There have been significant changes in employment and labour law in recent years. Views from the Front “is intended to get you interested in the current place of employers on the long and winding road of employment law and labour relations in Ontario (and more generally, Canada)” and to help “point out the speed bumps and potholes yourselves, so that you can navigate your way with a clear vision and know when you need a guide.”
The first part of the book deals with legislative changes in Ontario’s Occupational Health and Safety Act and Employment Standards Act including ticketing and new liabilities for employers.
A chapter on the aging workforce and abolition of mandatory retirement deals with changing policies, demographics, hiring policies and options for downsizing as well as avoiding age discrimination and the duty to accommodate.
Other legislative areas surveyed include human rights (an employer’s right to medical information in the accommodation process), privacy issues and surveillance and amendments to the Labour Relations Act (“restoring balance and fairness or increasing union organization?”)
The second part of the book provides an overview of some “hot topics” and related adjudication including:
•wrongful dismissal including termination for cause, constructive dismissal, punitive and Wallace damages;
•arbitration standards and outcomes in key cases concerning harassment allegations, Ontario health premium payments and an employer’s request for an independent medical examination;
•new addictions, such as gambling and pornography, and the difference between accommodation and mitigation; and
•legal and HR responses to public health emergencies, including a SARS case study and extensive consideration of legal and policy implications of a disease outbreak.
Ontario legislative provisions, key court and arbitration decisions, references to reports and websites and a detailed index make this a valuable source for practitioners. The authors, all lawyers with the firm Filion Wakely Thorup Angeletti LLP, also provide commentary, checklists and practical management considerations on the issues.
On Strike – and How to Prevent Getting There
By Stewart Saxe and Kevin Coon, 72 pages (Canadian Manufacturers and Exporters, 2006),
(905) 672-3466, ext. 257, [email protected]
This is a brand new edition of the manual from Canadian Manufacturers and Exporters advising employers of the legislative changes and practical considerations entailed in handling a work stoppage. The authors, experts with the law firm Baker and McKenzie LLP, are based in Ontario, but the book touches on key points of legislation in all jurisdictions, both provincial and federal.
While management’s rights and responsibilities under the law form the main focus, the authors also “stress the desirability of good communication, flexibility and judgment as part of the employer’s effort to avoid strikes wherever possible.”
Readers will find a pragmatic, detailed guide organized as follows:
•an introduction with a note on lockouts;
•the context of collective bargaining;
•being ready, shutting down operations;
•preconditions to a legal strike;
•communications with government, employees, the union, the public, customers and suppliers;
•shipping and receiving;
•property protection;
•relations with both striking and non-striking unions;
•strike settlement agreements;
•first agreement arbitration;
•payroll and benefits;
•non-bargaining unit personnel;
•guidelines on picketing, strike protocols and secondary picketing;
•injunctions;
•illegal strikes;
•preventing strikes; and
•detailed coverage of strike related employment insurance issues.
The authors consider both legal issues and good employer practices, emphasizing “responsible steps that management should consider — not to provoke or encourage strike action, but rather to prepare for and manage in the face of a strike, should it occur.”
Discipline Without Punishment
By Dick Grote, 258 pages, Amacom (2nd edition, 2006), ISBN 0-8144-7330-X
This is an update of the 1995 classic outlining “the proven strategy that turns problem employees into superior performers.”
In his industrial experience, Grote said the traditional disciplinary model (coaching, oral warning, written warning, suspension without pay, final warning, probation and termination steps) “produced nothing but belligerence, resentment and sabotage.”
That traditional model failed on many counts:
•supervisory inconsistency in application of the policy;
•supervisory hesitation to act until the situation becomes serious;
•employee complacency as they get used to punishment; and
•longer term side effects such as anger, apathy and resentment which undermine any short-term gains obtained.
Grote developed a new approach that is not punishment-oriented, but nevertheless is progressive and anything but soft and fuzzy. It begins with positive contacts to discuss performance improvement, then moves to formal reminders and finally to a “decision-making leave” — usually one day with pay. This is the final step in the disciplinary process, after which the employee must declare his intention to resolve the performance problem or leave the company.
Termination is thus framed as an action taken after the entire disciplinary process has run its course, rather than as a disciplinary step in itself. However, this point is not as simple as it appears. It’s embedded in a comprehensive discipline-without-punishment philosophy and policy framework.
Part one provides a foundation for building superior performance through examining many ways to recognize good performance and the ineffectiveness of the “treat everybody alike” manager. The new approach to discipline makes a significant shift of responsibility from managers to employees.
Part two outlines in detail 10 steps for preparing and conducting a performance improvement discussion.
Part three deals with the “mechanics” of discipline without punishment including the decision-making leave, discharge, solving attendance and attitude problems and the administration of the overall process including all policy and procedural aspects.
The final chapter describes how to create a discipline without punishment system, integrated HR policy development, ownership and leadership for the process, change management, communication and implementation steps.
Ray Brillinger is a certified management consultant who helps organizations with change management, HR strategy and performance improvement. He can be reached at (416) 766-9580 or [email protected].
