Canadian HR Reporter

CANADIAN HR REPORTER OCTOBER 2019 INSIGHT 27 When men stand in the way Being successful means helping all people, including women, to be successful I recently wrote about the "super- woman syndrome" and other is- sues surrounding women in the workforce. For those unfamiliar with the term, a superwoman is a woman who works very hard to manage multiple roles such as worker, homemaker, volunteer, student, neighbour and community mem- ber. e term was the title of a 1975 book by Shirley Conran. I made the point that employ- ers should focus on developing women not only because it is the right thing to do but because it is the smart thing to do — women are going to be the largest and best-educated group of entrants to the workforce of the United States over the next few years. Now I want to write about a barrier to the development of women that is not often dis- cussed (at least, not by many men) — incompetent men who stand in the way or block the way of competent women. Personal experience I have seen first-hand, in both my personal and professional lives, through the years, the challenges confronted by women. For example, my first boss was my paternal grandmother. She ran the newspaper distri- bution agency in my home- town. Grandma Schroeder, like many women of her generation, entered the workforce during the Second World War when the men joined the armed services. However, she stayed in the workforce after the men re- turned from the war. She worked for more than 40 years, until she "retired" at the age of 77, and then volunteered in the community (transporting shut-ins) until she was nearly 90. Widowed as a relatively young woman, Grandma Schroeder had to fend for herself. She put up with sniping comments about her toughness and the fact that she worked and was not occupy- ing a typical female role. But she did not worry very much about what people were saying behind her back; she was looking out for herself the best way she knew how. My grandmother was no Betty Crocker. Her speech was pep- pered with quips and credos, one of my favourites being: "Talk is cheap; it takes money to buy whisky." Ultimately, Grandma Schroeder turned out be one of the most important leadership "heroes" in my life. So, from an early age, I came to be attentive and sensitive to the challenges faced by working women in our society. Rising stars A few years ago, Harvard Business Review had an article that explored the impact that typical masculine behaviours or characteristics such as over-confidence, arrogance and aggressiveness have on gaining a leadership role. ese attributes are over-represented in men as compared with women. Historically, the article noted, men have been more successful in seeking and obtaining leader- ship roles, perhaps as a function of these attributes. Interestingly, research has demonstrated that hubris is in- versely related to leadership ef- fectiveness. In other words, over time, aggressive and arrogant leaders tend to fail. For example, the Center for Creative Leadership (CCL) has documented that 80 per cent of "rising star" leaders with whom they had worke through the years, who had turned into "plummet- ing comets," shared a common shortcoming — "an interpersonal flaw or deficit" (meaning they did not work well with others). Put simply, leaders who are self-aware and modest tend to be more effective than leaders who are vain and narcissistic. Humil- ity (sometimes manifested in self- deprecation), by the way, tends to be more common among women than men. Demographic trends It is also interesting to note some emerging demographic trends regarding men in the workforce of the United States. A few years ago, a cover story by the Chronicle of Higher Education explored the fact that men were falling behind women in educational attain- ment. Indeed, in American col- leges and universities, women now outnumber men at both the undergraduate and gradu- ate levels. Yet, men continue to outnumber women among the managerial and leadership ranks, especially in the C-suite. Is it not ironic that, increasing- ly, men who are less educational- ly prepared are supervising better educationally prepared women? Perhaps even more disturbing than that trend is the finding, ac- cording to the U.S. Department of Labor, that, since 2000, the labour force participation rate of young men without a college de- gree has declined more than any other age or gender group. For the first time since the Great Depres- sion and the Second World War era, young men are more likely to be living with their parents than with romantic partners. Left unchecked, these young men will eventually become 30- and 40-year-olds who find it dif- ficult to fit in or find their way in an increasingly sophisticated economy. Who will have to fill that void? Who will have to sup- port these guys? You know the answer: women. So, my message is this: If wom- en are truly going to fulfil their full potential, then men must do the same. is means adopting a deep and rich understanding of what it means to be a man in the 21st century, driven by an egalitar- ian and enlightened perspective that recognizes being successful means helping all people, includ- ing women, to be successful. Daniel Schroeder is president and CEO of Brookfield, Wisc.- based Organization Development Consultants. He can be reached at (888) 827-1901 or Dan.Schroeder@ OD -Consult ant s .com, or for more information, visit www.od- consultants.com. Daniel Schroeder Guest Commentary Women outnumber men at both the undergraduate and graduate levels, but men continue to outnumber women in the managerial and leadership ranks. Dealing with workers on medical leave How long is an employer required to keep an employee on the books if they're unlikely to ever return from a leave of absence? Question: If an employee has been off work for a while and provides medical information that is uncertain on whether the employee will be able to return, how long must an employer wait before terminating the employee? Answer: You would be amazed how often this issue arises. We seem to have a lot of employers with employees who have been "on leave" for years. In many cases, there has been no communication for an extended period and the documentation to support the ongoing absence is poor. Unfortunately, many employers are scared to ask for proper docu- mentation due to a misguided fear that they will be breaching the employee's privacy rights. e reality is that a leave of ab- sence is a form of accommodation. Any assessment of accommoda- tion requirements should involve an ongoing dialogue between em- ployer and employee. e starting point is that the employee must produce documentation clearly setting out any limitations on their ability to carry out their du- ties — whether the accommoda- tion relates to disability, childcare obligations or anything else. Once that information is provid- ed, the employer has a duty to as- sess the need for accommodation and, if there is one, assess the po- tential accommodations. e em- ployee is not necessarily entitled to their preferred choice of accom- modation; the duty is to provide reasonable accommodation to the point of undue hardship. With respect to employees where the medical documenta- tion shows that they cannot re- turn to work, even on modified duties, the question becomes whether or not the contract of employment has been frustrated. Contrary to popular belief, there is no magic number or specific amount of time after which the contract will automatically be deemed to be at an end. Even if the employee is no longer eligible for disability benefits, that does not mean their employment can be terminated if they don't return to work. e concept of frustration of contract not only applies to em- ployment contracts; its genesis re- lates to contracts generally. Simply put, a contract is frustrated when the contract cannot be completed through no fault of either party. In the context of employment, the fundamental basis of an em- ployment contract is that the indi- vidual will work and the employer will pay them for the labour. If the individual is unable to work, through no fault of their own, then the contract may be frus- trated. In that case, the employer is not terminating the employee's employment and the employee is not resigning. Rather, the contract simply comes to an end. Historically, that would mean that the individual is not entitled to any compensation arising out of the end of their employment. However, employment standards legislation has been amended to provide for termination pay and severance pay in the event of frustration of the employment contract. However, no common law notice, or pay in lieu thereof, will be required. Each case will be decided based upon its own particular facts and, in particular, the medi- cal information available. e courts will assess whether there is any reasonable likelihood that the individual will be able to return to work in the foreseeable future. If there is, then it is un- likely that the court will conclude that the contract of employment had been frustrated. This was an issue faced by Costco a few years ago. An em- ployee, Frank Naccarato, had been off work for about five years. Costco terminated Naccarato's employment based primarily on his family doctor's report, which indicated that it would not be possible to state when Naccarato could return to work. Naccarato sued for wrongful dismissal. Costco lost, primarily because there was no medical evidence to support a conclusion that there was no reasonable like- lihood Naccarato could return to work in the reasonably foresee- able future. Furthermore, in light of the large-scale operation of Costco, there was no basis upon which to conclude that his ongoing absence hurt the company in any mean- ingful way. As a result, continuing to accommodate him by allowing him to remain on leave did not constitute undue hardship. Stuart Rudner is the founder of Rud- ner Law, an employment law firm in Markham, Ont. He can be reached at stuart@rudnerlaw.ca or (416) 864-8500. Stuart Rudner Toughest HR Question e courts will assess whether there is any reasonable likelihood that the individual will be able to return to work in the foreseeable future.

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