Canadian HR Reporter

CANADIAN HR REPORTER November 16, 2015 INSIGHT 23 What have you done for me lately? A look at similarities between federal election and corporate boardrooms Canadians have spoken — they wanted change. Many pundits suggested there had become a prevailing mood that many Canadians would simply vote for anyone, but not incumbent Ste- phen Harper. We all have our own political views but I think Harper's last TV ads — suggesting the vote was not about him — was the realization his leadership was showing seri- ous signs of wear. It's tough to be a leader over the short haul, let alone for 10 years… so what can recent events teach us about leadership? Much has been written about Harper as a control freak. Some have even suggested the degree of command-and-control central- ization of all activity in the Prime Minister's Offi ce was unparalleled in our history. Expelled from the Conserva- tive caucus, Sen. Patrick Brazeau once said: "When I was in caucus, very few challenged him. ose who did were shut down; those who had diff ering opinions were silenced." Police charges laid against Brazeau for various offences would imply a personal bias is likely in play, but Harper did lose some key talent over the past couple of years — most, if not all, who were capable, competent, corporate leaders in their own right, tired of getting approval or having decisions made for them. Over the years, I have worked with many smart business lead- ers who were successful moving up the organizational hierarchy. They had deservedly taken on increased responsibilities and, indeed, some moved into the top seat. Some of them, and we know of others from various books written about leaders, started to display diff erent character traits as responsibilities progressively increased. From my experience, let me cite three things that occurred. Firstly, with ultimate control, some lead- ers no longer had time to seek other points of view. Secondly, some corporate leaders even believed they had become infallible and, thirdly, for many, they knew the associ- ated CEO severance packages were enough to sustain them in retirement. If leaders adopt an operating style akin to a dictatorship, it is unlikely a collaborative culture can be sustained and, further- more, it is also very likely some of the best executives will start to leave. Harper has also built a repu- tation as a cagey master of the art of "divide and conquer." e man is seen to be rather cool and calculating, and some have sug- gested he visualizes opponents as enemies. Since Harper is a hockey fan, some have suggested he can play the role of the captain, directing the strategy, as well as the enforc- er, exercising power and com- manding fear. He does not like to lose and to be out-maneuvered by the Liberals must be abhorrent to him. Once again, there are similari- ties in corporate settings, where in the course of CEO succession, we have witnessed senior executives in the same organization being pitted against each other, with the winner taking the CEO mantle, and the loser (losing team) being shown the exit door. Some of us have witnessed a CEO having a temper tantrum at the board level if her strategy is rejected. Some CHROs have been in the place of mediating between angry CEOs and board members who are fulfi lling their duty to question or validate the accuracy of presentations or a proposed strategy. John Ibbotson of the Globe and Mail has observed, "Perhaps Harper's challenge throughout his life has been his need to be in charge. He joins no team. He leads or he leaves." The irony is that, under his leadership, Harper has achieved a great deal, with many notewor- thy accomplishments, including guiding us through a financial crisis and building a solid fi nan- cial footing, for which Canadians should be proud. At this time of year, as we refl ect on performance, there is a truism that recognition and continued tenure is about performance to- day — past achievements are old news. The Conservative campaign did not provide an exciting plan for our collective future; rather, it seemed the party was resting on its laurels. Corporations relying on this strategy would be seen as fl oun- dering or rudderless, and inves- tors would be questioning their long-term viability. Don't we all look for a longer term vision that off ers a brighter tomorrow? is is what we expect leaders to off er. Let me conclude with observa- tions by Harvard Business Review on the weaknesses of the narcis- sistic leader: • As they garner adulation and success, these leaders begin to feel invincible. ey ignore cautionary words and take fl a- grant risks. ey listen only to information they seek and begin dominating subordinates (for example, former Apple CEO Steve Jobs publicly humiliated employees). • Sensitivity to criticism — un- imaginably thin-skinned, narcis- sists can't tolerate dissent. ey say they want teamwork but, re- ally, they want yes-men. • Lack of empathy — they crave empathy but are not empathetic themselves. ey can be brutally exploitative • Intense desire to compete — they pursue victory ruthlessly, often unrestrained by conscience and convinced that threats abound. ("Only the paranoid survive," said Andy Grove of Intel.) Chief human resources offi cers placed in such a situation must act. It takes courage because of the associated employment risk, but wherever dysfunction exists, rarely does an organization fi re on all cylinders. Canadians voted, and in cor- porations, employees cross the street, disengage or even sabotage. Leadership matters. Ian Hendry is president of the Stra- tegic Capability Network and is vice- president of HR and administration at Interac in Toronto. Canadians have spoken — they wanted change. Many pundits suggested there had become a prevailing mood that many Canadians would simply vote for anyone, but not incumbent Ste- Ian Hendry GUest CoMMentarY There is a truism that recognition and continued tenure are about performance today — past achievements are old news. Changing a new hire's start date Delaying start date could amount to employee's constructive dismissal Question: Once a job candidate accepts an employment off er, would delaying the start date be a breach or fundamental change in the employee's employment contract? Answer: Delaying the start date of an employment contract could be a fundamental change amounting to constructive dismissal. Wheth- er it would be such a change would depend on the circumstances. e Supreme Court of Canada recently clarifi ed the law relat- ing to constructive dismissal in its decision in Potter v. New Brunswick Legal Aid Services Commission. It confi rmed constructive dis- missal could occur in two ways: a unilateral change that sub- stantially changes an essential employment term or employer conduct that indicates an inten- tion to no longer be bound by the contract. In establishing the fi rst form — a substantial alteration of an es- sential term — it must be shown a reasonable person in the same situation as the employee would have felt the essential terms of the employment contract were being substantially changed at the time the breach occurred. Although constructive dismiss- al typically involves changes to an employee's compensation, work assignments or place of work, it is certainly not limited to those circumstances. If a fi rm start date can be re- garded as an essential term on the facts, a substantial alteration of that term could constitute a constructive dismissal. Horvath v. Joytec In Horvath v. Joytec Ltd., an em- ployee had accepted a job off er with a start date of either Dec. 1 or Jan. 2 and a promise from the new employer to provide a fi rm date by the end of October. Sub- sequent discussions indicated a start date of Jan. 2 would be most likely. In November, the employee re- signed her existing employment effective mid-December and informed the new employer by telephone that she had done so. Although there was some dis- pute as to what transpired in the telephone conversation, the em- ployee wrote to the new employer shortly thereafter confi rming her continuing interest in the position and her awareness there would be some delay in the commencement of her employment. At trial, she testifi ed she un- derstood from the parties' dis- cussions she would likely start in February, but a March date was possible. e employee telephoned the new employer in February and was told June or July was more likely and, if she could not wait, she should look for other employ- ment. She did so and eventually found employment at a reduced salary. e trial judge found a con- cluded contract of indefi nite hir- ing that was to commence no later than March 2. The employer had breached that contract. Reasonable notice of the ter- mination was six months under the circumstances, which includ- ed the fact the employer had in- duced the employee to leave her former employer and had done so at a time when economic con- ditions made it diffi cult for the employee to find replacement employment. e delay in Horvath was ex- treme. It is unlikely a delay of a few days would constitute a sub- stantial or fundamental altera- tion of even a fi rm start date for employment. However, an employee might reasonably regard a longer delay as signifi cant. An employer faced with a de- lay in providing work under an accepted offer of employment would be well-advised to inform the new employee at the earliest possible time and to be straight- forward and honest about the rea- sons for the delay. If an anticipated unilateral delay of an agreed-to start date is likely to be more than minimal, the em- ployer should be aware its new employee might be in a position to claim constructive dismissal and reasonable notice without ever having worked a day. For more information see: • Potter v. New Brunswick (Legal Aid Services Commission), 2015 CarswellNB 87 (S.C.C.). • Horvath v. Joytec Ltd., 1989 Car- swellSask 329 (Sask. Q.B.). Tim Mitchell practises management- side labour and employment law at Norton Rose Fulbright's Calgary offi ce. He can be reached at (403) 267-8225 or tim.mitchell@nortonrosefulbright. com. Question: Once a job candidate accepts an employment off er, would delaying the start date be a breach or fundamental change in the employee's employment Tim Mitchell ToUghest HR QUestion An employer faced with a delay in providing work under an accepted employment offer should inform the employee as soon as possible.

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