Canadian HR Reporter

N E W S 12 www.hrreporter.com The pitfalls of having robots replace people When a Spanish accountant found herself replaced by a robot, she fought back — and won. There are lessons here for employers looking to introduce automation to the workplace, finds John Dujay to try and keep that redundant employee employed," says Stam. However, the Spanish case may provide guidance for a future court battle in this country, according to Frazer. "I would not be surprised if it happened sooner [rather] than later because European law is a trendsetter and using those principles of that Spanish case could be extrapolated onto the Canadian impact. It wouldn't surprise me if that case would be made because I think, as we see greater change [happen] rapidly, people will be concerned about the pace of change or being able to adapt," he says. "Trying to figure out what law [was transgressed], that would be the difficulty here." Avoiding constructive dismissal Employers should also note that employees do have a form of protection in certain cases involving technology changing their positions, says Frazer. Stam, lawyer and founder of Spring Law in Toronto. "The idea of reinstatement doesn't really exist — other than one little corner of a remedy in the federal level and maybe the Human Rights Tribunal — but in the normal course, you could never just reinstate someone," she says. "It would always be a monetary dam- age if anything; there would not be an automatic right to keep the job. You basically can fire anyone if you give them enough of a package." Generally, employers are able to exercise this power as long as it's not discriminatory, says another employment lawyer. "There's a right to be treated fairly, there's a right to bargain collectively, but there's not a clear right to be employed because, otherwise, we'd have 100-per- cent employment in our country. You're not terminating them with cause so you can pay and then basically eliminate the job," says Mitch Frazer, a partner at Torys in Toronto. Unionized employees in Canada are largely safeguarded against job loss due to automation, as many contracts include specific clauses for addressing that situation, says Stam, but only a minority of the Canadian workforce currently has union protection. "Often, a collective bargaining agree- ment will have a technology provision where it tries to protect employees and give the union some rights in negotiating when upgrades and technology replace workers because of technology. The union will fight to protect jobs; not necessarily to stop the technology but to protect jobs and work with the employer "The principles that [employers] need to worry about when you're switching a job — assuming that you want people to stay — in order to avoid constructive dismissal is you need to get either their consent or the job can't have a fundamental change to it." An example is if someone works in a restaurant as wait staff and then, suddenly, the takeout portion of that restaurant's business expands and the waiter becomes a delivery person, he says. "That would be a different job because you're not reporting to the same persons anymore: You're going to the same place, but you're doing a very different job. [The employer would] need their consent in order to change that job." And, during the coronavirus pandemic, many employers made changes to the workforce, says Stam. "We're definitely seeing employers really synthesizing their workforce. Sometimes, they're using it as an excuse to get rid of some dead weight, but a good chunk of the time it's a legitimate business restructuring, where they've now brought in some sort of automation, whether it's an AI receptionist or whatever it might be, and really looking IMPACT OF MANUFACTURING AUTOMATION ON ONTARIO'S WORKERS "As we see greater change [happen] rapidly, people will be concerned about the pace of change or being able to adapt." Mitch Frazer, Torys 5.5% Drop in employment in the manufacturing sector from 2001 to 2011 370,850 Number of people whose employment is considered highly vulnerable to automation 70% Number of tasks that are considered technically automatable THE fear of robots coming to take our jobs has made headlines for years. As automation and artificial intelligence continue to creep into the workplace, many people are worried about how their occupations will be transformed or disappear. That's exactly what happened to a worker in Spain recently, after an automated process replaced her position. The accounting professional was let go from her job of 13 years after the employer brought in a new computer system that made the job redundant. But a judge ruled against this ter- mination and said the reason given — that productivity was improved — was "not sufficient to justify the dismissal," according to the Spanish daily newspaper El País. Future court battle? But could this scenario happen in Canada? Not really, according to Lisa Source: Brookfield Institute for Innovation + Entrepreneurship 10 Number of employees it took to generate $1 million in revenue in 2001, compared to eight in 2016

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