Canadian HR Reporter - Sample Issue

CANADIAN HR REPORTER October 2, 2017 INSIGHT 19 Brian Kreissl TOUgHeST HR QUeSTiON Employers aren't hamstrung when it comes to marijuana at work Recent decision upheld termination of worker after one-time breach of drug policy e legalization of marijuana made news again recently when Ontario announced its plans with respect to how the legal sale of mari- juana will be practically rolled out. Basically, the Liquor Control Board of Ontario (LCBO) will run 150 retail outlets selling marijua- na, and the drug will also be avail- able to purchase online. Mom and pop marijuana dispensaries, which have always been illegal, will continue to be illegal. But it seems like there are a lot more than 150 of these illegal dis- pensaries, and it is hard to imag- ine 150 government-run stores will be able to meet the clear mar- ket demand. Concerns have been raised that the black market will continue to fl ourish, even once these new legal stores open. Ontario also announced that, for now, the legal use of recre- ational cannabis will be confi ned to private residences. Similar to alcohol, it will not be allowed in public places or workplaces. As a result, workplace policies may need to be updated based on the changes to the law. While drug laws in this country seem to be softening, a decision from the Supreme Court of Can- ada this June seems to have given drug policies more teeth. In Stewart v. Elk Valley Coal Corp., the Alberta court upheld the termination of an employee for a one-time breach of the em- ployer drug and alcohol policy. In the past, a one-time breach rarely justifi ed with-cause termination. e policy in question required employees to disclose any addic- tions prior to the occurrence of a drug- or alcohol-related incident. e policy specifi ed that those who did disclose would be sup- ported with treatment, and those who did not disclose, but subse- quently tested positive for drugs or alcohol, could be terminated. In this case, the employee, Ian Stewart, held a safety-sensitive coal mining position, did not dis- close his addiction, was involved in a workplace accident and subse- quently tested positive for cocaine. During the investigation fol- lowing the accident, Stewart dis- closed that he thought he was ad- dicted to cocaine. Elk Valley ter- minated Stewart's employment, in accordance with the terms of its policy. Stewart brought a human rights complaint on the grounds he was terminated for his addiction, constituting discrimination on the basis of disability under the Alberta Human Rights Act. e Alberta Human Rights Tri- bunal held that Stewart was ter- minated for breaching the com- pany policy, and not because of his addiction, and in the alternative, that discrimination was permis- sible where there was a bona fi de occupational requirement. Stewart argued that part of his addiction was a denial of his addic- tion, and therefore it was his ad- diction that prevented him from complying with the policy with respect to disclosing his addiction. On this point, the tribunal stated, and the Supreme Court agreed, that while he may have been in denial about his addiction, Stewart knew he should not take drugs before working and had the ability to decide whether or not to do so, as well as the ability to dis- close his drug use to his employer (and comply with the policy). De- nial about his addiction was thus deemed irrelevant. e tribunal reached the deci- sion there was no prima facie dis- crimination and the mere presence of an addiction does not establish prima facie discrimination. Stewart appealed to the Court of Queen's Bench and to the Alberta Court of Appeal, and both courts dismissed the appeal. e Supreme Court also upheld the tribunal's decision in an eight- to-one split. In many cases, where there is an addiction-related issue in the facts with respect to a termination, em- ployers may have felt hamstrung. is case indicates that where the policy is clear, and where the employee has the capacity to com- ply with the terms of the policy (addicted or not), a termination can be justifi ed. Lisa Stam is founder of Spring Law in Toronto and practises all aspects of employment, labour and human rights law. For more information, visit www.springlaw.ca. While he may have been in denial about his addiction, Stewart knew he should not take drugs before work. So many job applicants, so little time How can we whittle down the number of applicants to a reasonable number? Question: We're a fairly large organiza- tion and we have a very good reputation among jobseekers. Because of that, we get far too many applicants for many of our positions. How do we whittle down the number of applicants to a more manage- able number, and how can we ensure we are shortlisting and interviewing only the top applicants? Answer: Every organization has an employer brand. If the em- ployer brand is good, people could literally be lined up outside the door to apply for a job with the organization. While that is a good thing, it does present challenges — particularly if the job market isn't great and a large number of people are looking for work. Entry-level positions, in partic- ular, may draw a large number of applicants. is is especially prob- lematic in this day and age given that candidates can now apply for vacancies from anywhere, so most applicants aren't qualifi ed for the jobs they're applying for. Auditing the employer brand From an employer branding per- spective, it might make sense in such a situation to complete an audit of the organization's employer brand to determine if you're getting the right people applying for positions. As is the case with the product market, you should complete a segmentation exercise and iden- tify the appropriate target mar- kets for applicants based on the results (although it is important not to discriminate against any- one and maintain a diverse pool of candidates). While your employer brand should be able to attract quality candidates, it should be targeted and avoid trying to appeal to ev- eryone. After all, not everyone is going to be a good fi t. In particular, you should ex- amine the wording and the gen- eral content, tone and style of the corporate careers site and any recruitment advertising. It is also important to look at how and where you advertise, and evaluate the candidate sourcing channels. Job advertising should ideally be targeted and discourage unquali- fi ed candidates from applying. Using an ATS If you aren't using an applicant tracking system (ATS), I would recommend looking into one. Such tools can really reduce the workload of recruiters by auto- mating the recruitment process to a certain extent, screening re- sumés using keyword searches and possibly asking candidates online prescreening questions to determine suitability. While care should be taken to avoid overreliance on technology, an ATS can help identify suitable candidates. Such tools can also help track where candidates are in the process and facilitate online communications with applicants through automated email messag- es. ey can also make posting to the organization's website and job boards much easier. Selecting appropriate candidates Of course, when you're deliberate- ly narrowing the candidate pool or rejecting a signifi cant portion of applicants without having a hu- man being review the resumés, there is an increased chance top candidates may fall through the cracks and not be shortlisted for interviews. is can be a problem, particularly when using an ATS. So it's important to ensure the algorithms used to search for keywords are appropriate and not unduly restrictive. It may be nec- essary to expand the search us- ing synonyms or alternate search terms that yield better results. In the case of critical vacan- cies or diffi cult-to-fi ll positions, it becomes important to review all or most applicants — not just the top candidates as selected by the ATS. Human intervention be- comes critical. It might also be good to look at your interviewing and selection techniques and determine what works in terms of selecting suit- able candidates. For example, you may fi nd that interviewing based on your organization's competen- cy framework, using psychomet- ric tests, employing behavioural interviewing techniques, having panel interviews and providing re- alistic job previews help you build a quality shortlist of candidates. You should periodically audit the candidates selected for short- listing to determine if suitable candidates are being rejected. It is also important to track mean- ingful recruitment metrics and continue to monitor the quality of new hires over time. Other tips and strategies Beyond re-evaluating and pos- sibly tweaking your employer branding strategy, reviewing candidate sourcing techniques, introducing new technology and auditing interviewing and selec- tion techniques, the following are some additional tips and sugges- tions that can help narrow down the pool of candidates: • Determine critical requirements with respect to education and ex- perience, and narrow down the pool of applicants based on those criteria. • Conduct brief telephone pre- screening conversations to de- termine suitability, interest, geo- graphical area, candidate avail- ability and salary requirements before calling candidates in for interviews. • Consider including salary rang- es in job postings, particularly if you think a large number of applicants with very high salary requirements would otherwise apply. • Work with the hiring manager to develop candidate profi les that look beyond the job postings and include all of the job require- ments and assets. • Consider leaving job postings up only for a relatively short period of time — particularly in the case of junior or entry-level roles that regularly generate a large volume of applicants. • Include closing dates on postings and adhere to them. • Search your candidate database before posting a job to determine suitability of existing candidates or previous applicants. • Adopt a policy whereby internal applicants and employee refer- rals are given an opportunity to apply for vacancies before exter- nal candidates. • Consider job applicants for more than one vacancy at a time, espe- cially where candidates might be a better fi t for another posting. • Consider advertising on niche job sites or through professional associations, rather than using generic job boards. Brian Kreissl is the product develop- ment manager for omson Reuters Legal Canada's human resources, OH&S, payroll and records retention products and solutions. He can be reached at brian.kreissl@tr.com. e legalization of marijuana made news again recently when Ontario announced its plans with respect to how the legal sale of mari- Lisa Stam GUeST COMMeNTaRY

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