Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER May 5, 2014 May 5, 2014 INSIGHT INSIGHT 23 23 When a manager dates an intern When a manager dates an intern Question: One of our managers is dating a co-op student. Can we discipline him for this indiscretion? We don't currently have a policy on dating in the offi ce. If we were to consider implementing one, what are the ground rules? Answer: e short answer is yes, you can discipline the manager. e longer answer requires a dis- cussion of the various bases for that discipline. Written policies dealing with workplace romance are not as common as you might think. e prevailing thought, and the cor- rect one, is an employer has no business in the bedrooms of its employees. at being said, few would dispute an employer's legit- imate interest in preserving a safe, orderly and productive workplace and in taking reasonable steps to protect itself from liability. In the scenario above, the em- ployer does not have a written policy and discovers that one of its managers is dating a co-op student. Assuming the relation- ship has not been condoned by the employer, the question is whether the employer has cause to disci- pline. Factors to consider include the following: Assuming the relationship is sexual, has the student attained age of consent? In Canada, the age of consent was raised from 14 to 16 in 2006. If the student has not reached the age of consent, not only is discipline in order and jus- tifi able but so too is reporting it to the authorities. Does this relationship violate any contractual terms between the employee and the co-op program? If the manager's actions cause the employer to be in breach of any term of an agreement with the co- op program, that would support the need for discipline. For exam- ple, the manager's actions might lead the sponsoring institution to question whether the employer has met its obligation to provide an appropriate working environ- ment with adequate supervision. Is the relationship consensual? In a situation where there may be a signifi cant disparity in the rela- tive authority of the manager and student, the employer should take steps to determine whether the student is being taken advantage of or harassed. at can be diffi - cult to discern; however, questions should be asked to determine whether promises were made or actions suggested the student was or would be "rewarded" for par- ticipation in the relationship. If there is evidence the relationship is not consensual, discipline may be appropriate, up to and includ- ing dismissal. Has the relationship placed the manager in a confl ict of interest? If there is evidence the relation- ship has impacted the manager's decision-making regarding job scheduling, performance reviews and so on, then discipline is ap- propriate, up to and including dismissal. Has sexual behaviour taken place in the workplace? If so, dis- cipline is appropriate, up to and including dismissal. Implementing a romance policy Workplace expectations can be created through past practice or verbal conversation, however, a written policy is almost always best. It provides a clear indication to employees that certain conduct is prohibited. An outright prohibition on romantic relationships between employees is not likely to be suc- cessful. First of all, a relationship between consenting adults — where there is no favouritism, no confl ict of interest and no abuse of power or impact on workplace morale — may not be an issue for the employer. In addition, a strict prohibition is likely to drive of- fice relationships underground or, worse, cause the departure of otherwise good employees. For those reasons, it is advisable that a policy targets the potential, adverse results of the relationship as opposed to banning the rela- tionship itself. In terms of "ground rules," con- sider the following: •One objective of the policy is to limit the potential for harassing or discriminatory behaviour. A written policy should make it clear any behaviour that could be considered sexual harassment or discrimination is strictly pro- hibited. •A workplace romance does not vitiate an employee's professional obligation to maintain confi den- tiality (as applicable) and avoid confl icts of interest. is should be made clear in the policy. •To eliminate the existence, or appearance, of favouritism, the policy should prohibit relation- ships between employees in a reporting relationship. •So that management is informed and able to take appropriate steps, the policy should require any intimate relationship be- tween employees be disclosed to human resources or manage- ment. •Similarly, the policy should re- quire notice of the breakdown of a workplace romance so man- agement can prepare for any problem that may arise. •The policy should make clear employees are expected and re- quired to maintain a business- like approach to their work at all times and conduct themselves discretely and professionally. •If there is an existing relationship between employees that was pre- viously condoned but would now violate a workplace romance policy, the employer should consider whether bringing the relationship into compliance with the policy could constitute a constructive dismissal. For ex- ample, perhaps the employees were in a reporting relationship and the employer sought to re- assign the employees or remove the reporting relationship. e bottom line is this: While an employer has no business in the bedrooms of employees, there are circumstances when an employer does have a legitimate interest. In those circumstances it is acceptable, if not advisable, to take steps necessary to protect the workplace. Brian Wasyliw is a lawyer at Sherrard Kuzz, a Toronto-based employment and labour law fi rm representing em- ployers. He can be reached at (416) 603-0700 or visit www.sherrardkuzz. com for more information. Brian Wasyliw Toughest HR Question Prepare manager in advance Prepare manager in advance TERMINATIONS < pg. 22 Remove any unnecessary items that could be used as weapons. These include scissors, letter openers, rulers, cutlery, extra pens or pencils. If you wouldn't be al- lowed to pass airport security car- rying it, then remove it from the room — or at least put it out of plain sight. Meetings rooms are typically empty and have a variety of seat- ing options, so they are ideal for termination meetings. Keep your smartphone tucked away in a pocket or portfolio and turn it to silent — you may need it but you don't want it to disrespectfully in- terrupt the meeting. Prepare the manager in ad- vance to communicate the craft- ed exit message to her employee simply and clearly. e manager should be prepped to avoid using this as an opportunity to vent her frustrations with the employee or assuage any guilty feelings she may have regarding the exit. Discuss who will answer the employee's questions and how this will be done. Shutting the questions down completely can be counterproductive and more likely infl ame an employee strug- gling to control his emotions. Put together a communica- tion plan to be certain the right people will know at the right time that employment has been ter- minated for this individual. is plan should include colleagues, security and the appropriate con- tacts in IT. is plan will help avoid a situ- ation where the employee is al- lowed back into secure areas of the building and should prevent him from being able to access the or- ganization's assets electronically. During the termination Having taken safety precautions, you should be able to focus on the meeting and conduct it with em- pathy and precision. However, be alert and aware of the employee's body language and responses. As the conversation progresses and the employee comes to un- derstand the nature of the meeting he will typically display emotional reactions. Good listening on your part is a basic confl ict-resolution skill and can keep the conversa- tion on track: •Pay close attention to the em- ployee's point of view and con- cerns and attempt to address them with empathy. •Show the employee with your body language that you are lis- tening. •Nod your head as he speaks. •Make eye contact frequently but not constantly. •Lean forward slightly toward him. •Acknowledge what he is saying; paraphrase and condense what he has said and repeat it back to him and provide an opportunity for him to clarify. If the necessary information has been communicated and the employee appears to be calm, end the conversation as quickly as possible and bring in the outplace- ment consultant. e employee's manager can go back to the employee's desk to collect any personal belongings he will need to get home (such as keys, a purse, shoes and a coat). e rest of his belongings can be couriered to his home or picked up later. Collect keys, security cards, smartphones and any other orga- nization assets from him. Try not to have the employee going back to his desk to collect belongings — if the outplacement consultant is there, she may help reason with the employee. Often, the employee will return to the workplace before normal working hours or after normal working hours to pack up his be- longings, accompanied by either his former manager or a represen- tative from HR. If you follow this approach, take precautions by informing security of the visit and ask that another member of the HR team be pres- ent with you. After the meeting has taken place and the employee has his necessary belongings, have the outplacement consultant escort the employee from the building and straight into a taxi home — if possible. Obtain a taxi chit for the de- parting employee. Not only is this a humane gesture to avoid the em- ployee having to stand around in public waiting for transit or hav- ing to drive in an emotional state, it ensures the employee leaves the business location sooner than later. After the meeting When all else has been done, ensure execution of the commu- nication plan and document any notable aspects of the meeting, particularly if there was any con- fl ict or aggression. Remember to stay alert when entering and leav- ing the building at work. Remember to look after your- self and fi nd a way to release the tension and emotion you will have felt during the termination. Remember — you are an employ- ee too and employee assistance program (EAP) counsellors are available any time if you need to talk. Lauren Chesney is an HR manager at OMERS (Ontario Municipal Em- ployees Retirement System) in Toron- to. She can be reached at lchesney@ omers.com. Ron Chesney is a former chief inspector, Criminal Investigation Department with Strathclyde Police, Scotland. He is a trained hostage ne- gotiator, former lecturer at Tulliallan Police College and personal safety trainer. He is also Lauren's father. WHAT TO LOOK FOR Warning signs and danger signs The vast majority of terminations will end without incident. However, with vigilance, we may detect early warnings of a deteriorating situation where an employee may turn into an aggressor. In a developing confl ict situation, "warning and danger signs" are displayed by individuals as they become aroused during confl ict. WARNING SIGNS Signals that may be an indication of the employee's increasing arousal and possibility of violent behaviour include: •direct, prolonged eye contact (staring) •facial colour darkens •head is back •standing tall to maximize height •kicking the ground •large or expansive movements close to the person •abruptly starting or stopping some form of behaviour •resorting to personal identifi cation where he perceives a particular individual is the problem and direct his aggression towards her. DANGER SIGNS Signs that violent behaviour is imminent include: •fi sts clenching and unclenching •complexion pales •lips tightening over teeth •head dropping forward to protect the throat •eyebrows dropping forward to protect eyes •hands rising above waist •shoulders tense •adopting a sideways stance •breaking a stare and looking at an intended body target •if out of reach, lowering of entire body before attack. If you feel you are in danger, don't hesitate to raise the alarm and call for help. If possible, exit the room. At the fi rst sign of physical aggression, the best defence — apart from not being there — is to create space and make use of any barriers within the room such as desks, chairs, clipboards — anything which offers some protection from injury. If you are out of options, you are entitled to use force to defend yourself. Never hesitate to dial 911.

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