Canadian HR Reporter

CANADIAN HR REPORTER SEPTEMBER 2019 INSIGHT 23 Can an employee be required to use vacation during a temporary shutdown? What are employers' options if worker has already used vacation time for the year? Question: If an employer shuts down its operations for a short period of time, can it order employees to use some of their annual vacation entitlement for that pe- riod of time? What are the options if an employee has already used her vacation time for the year? Answer: Employers have a gen- eral right to dictate when employ- ees take vacation. In the unionized context, this right is subject to the terms of the collective agreement. In the non-union context, man- agement may schedule vacation time according to business needs, unless the employment agree- ment provides otherwise. Provincial employment stan- dards legislation requires that employers allow employees to take their vacation in periods of one or more consecutive weeks unless otherwise requested by the employee and agreed upon by the employer. Employees are also required to take their vacation within 12 months of earning it, although an employer can request that em- ployees take their vacation days before earning them. If an em- ployer wishes to do so, it must ex- plain the impact this will have on future vacation entitlements and obtain the employee's approval. Employers may accordingly re- quire non-unionized employees to take vacation during a shut- down, provided the employees have vacation available and the shutdown is for a period of at least one consecutive week. For employees who have ex- hausted their vacation entitle- ment, a shutdown will result in a temporary layoff. At common law, a temporary layoff will normally be considered a constructive dis- missal, unless there is an express or implied term in the employment agreement that contemplates tem- porary layoffs from time to time. Provincial employment stan- dards legislation provides that employers may temporarily lay off employees. The allowable length of a temporary layoff dif- fers throughout the jurisdictions. However, because the common law does not provide for layoffs, courts have generally held that un- less the employment agreement expressly or impliedly allows for a layoff, employment standards provisions regarding temporary layoffs do not apply. In Collins v. Jim Pattison Indus- tries Ltd., the court noted: "e [Employment Standards] Act does not grant all employers the statutory right to temporarily lay off employees, regardless of the terms of their employment con- tract. Rather than creating new rights, the act appears to be quali- fying employment agreements in which the right to lay-off already exists. erefore, unless the right to lay-off is otherwise found with- in the employment relationship, the above cited sections of the act are not relevant." e Alberta Court of the Queen's Bench provided a different inter- pretation in Vrana v. Procor Ltd., finding that the temporary layoff provisions in the Alberta Employ- ment Standards Code created an implied term in all employment agreements allowing employers to temporarily lay off employees per the terms of the code. e case was overturned on ap- peal, but the Court of Appeal did not explicitly address the issue of whether the statute creates an implied term for temporary lay- off, instead noting that the code requires all employers to give "fair notice" of a temporary layoff. Though the law is unsettled, most case law follows the Collins approach. If the right to impose a temporary layoff is not an express term of the employment agree- ment, it is still part of the employ- ment relationship if the worker consents or if temporary layoffs are common practice in the work- place, industry or sector where the employer operates. For more information, see: • Collins v. Jim Pattison Industries Ltd. (1995), 7 B.C.L.R. (3d) 13 (B.C. S.C.). • V rana v. Procor Ltd., 2003 ABQB 98 (Alta. Q.B.). Colin G.M. Gibson is a partner at Harris & Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Don't believe those empathy myths Empathy is a quality that's sorely lacking among many of today's leaders Empathy is a quality sorely lacking among many of today's leaders, even though it is exactly what is needed within modern organizations. Some leaders have dismissed em- pathy altogether, continuing to subscribe to old-school leadership tactics and models such as "com- mand and control." Others, however, may be cu- rious about empathy and how it can enhance their leadership, but they are swayed by powerful, per- sistent myths. ese empathy myths are root- ed in ways of thinking that just don't work anymore. They are remnants of a time and place that hasn't existed in decades. Leaders who continue to sub- scribe to these myths find them- selves at the helm of organizations that fail to keep up with the times. Their stubborn insistence on avoiding empathy as a key com- ponent of leadership puts them at odds with employees. It creates discord and keeps these leaders from connecting with employees in real, human ways. Engagement drops, productiv- ity decreases and people begin to look for better work elsewhere. Busting the myths To me, empathy is essential for successful modern leadership. I have seen numerous leaders take a leap of faith into a more em- pathetic approach; every single time, it has yielded improve- ments in engagement, morale, productivity, employee satisfac- tion and even profitability. My own career took off in a big way, too, when I started to become more openly vulnerable and empathetic. Yes, it is a "soft skill," but make no mistake: Em- pathy is responsible for solid-as- concrete results for those leaders who take it seriously. Nevertheless, unhelpful and untrue myths continue to persist: 1. Empathy requires superhuman effort Some leaders want to lead with more empathy, but they feel it will require an effort too large to bear in their busy lives. e truth is that empathy does not require extra effort. In fact, avoiding empathy takes more time and energy than practising it. Why? Empathy is a core aspect of human nature. It comes natu- rally, but our culture often tells us we need to suppress it or it is too much of a hassle to engage in day- to-day interactions. When you show empathy to others, one of the first things you will notice is just how easy it feels. It requires almost no effort at all once you recognize the unconscious actions you take to avoid feeling it. 2. Empathy is weakness When did empathy become equat- ed with weakness? It's hard to pin- point exactly when the two ideas became conflated, but they could not be further apart in reality. Empathy is a sign of tremen- dous strength, but it is not easy to practise. at's because society, culture and old-school leadership advice have muddied the waters, convincing people they should avoid looking "soft" or projecting anything but strength. I don't get it. Showing empa- thy to an employee who makes a mistake requires much more strength than being punitive in your approach. Empathy requires leaders to confront their feelings and have meaningful interactions with those who need guidance, which is the opposite of weakness. 3. Empathy is inappropriate in the workplace Humans are emotional, empathet- ic creatures by nature. erefore, discouraging emotions and empa- thy in the workplace is a recipe for disengagement and will produce low to average productivity. Certainly, each organization has standards of propriety in terms of how people should conduct them- selves. Work must get done, so it makes sense that organizations should focus on productivity over feelings to a degree. But to deny human aspects such as emotion and empathy is not realistic. Empathy is not only appropriate in the workplace, it is necessary. 4. Having empathy for someone means agreeing with them 100 per cent ere is a popular misconception that empathy means you agree with another person's feelings, ideas and perceptions. is may not be the case at all. You can use empathy to understand what another person might be feeling while also disagreeing with them. Empathy does not require you to change your values, beliefs or preferred approaches to doing business. Rather, it requires you to understand that other people have different ideas — and that's OK. When you can understand an- other person, you begin to realize the reasons for their choices and actions. en, you can use your leadership skills to inspire them to work differently. Without em- pathy, I just don't see how this is possible. It's not about agreement; it's about understanding. 5. Empathy clouds leaders' judgment Some might argue that empathy keeps leaders from being decisive. ey fear empathy might cloud their judgment and ability to make sound decisions. ey worry they will spend too much time consid- ering the voices of others, making them seem wishy-washy or un- able to provide direction. Here's the truth — a lack of em- pathy is what clouds judgment. When leaders fail to consider the views, opinions and ideas of oth- ers, they make uninformed deci- sions that can lead to organiza- tional chaos or failure. But when leaders use empathy alongside their decisiveness and vision, they can make decisions that people can get behind, allow- ing for greater success. 6. Empathy cannot be learned I must admit that empathy does not come easy to some leaders. Some people seem to be born with it or have an innate sense of empathy as a source of strength. Others just don't seem to have a feel for soft skills such as empathy. Leaders who do not feel a natural sense of empathy may believe it's not worth their time to incorporate it into their respective skillsets. But they are just as capable as anyone else when it comes to developing essential soft skills for leadership. Empathy is a feeling, but it also has an intellectual aspect. The more a leader learns about empa- thy and its measurable, positive impacts, the more they may be in- clined to tap into their emotions, unlocking empathy. If you are a leader who is just "not feeling it" when it comes to developing empathy, you prob- ably need to take an approach that's more conducive to the way you learn and change behaviours. In other words, some leaders do better by approaching empathy via the head instead of the heart. Either way, empathy is some- thing that can be learned. Joanne Trotta is the founder and managing partner at Leaders Edge in Toronto. She can be reached at (855) 871-3374 or joanne.trotta@ leadersedgeinc.ca. For more informa- tion, visit www.leadersedgeinc.com. Joanne Trotta Guest Commentary Colin Gibson Toughest HR Question For employees who have exhausted their vacation entitlement, a shutdown will result in a temporary layoff.

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