Canadian HR Reporter

Canadian HR RepoRteR august 11, 2014 EmpLOYmENT LAw/NEwS 7 started taking medication and applied for short-term disability (STD) benefits. He also attended counselling on the instruction of the Mosaic occupational health nurse. Employer suspicious over timing But Mosaic continued to be sus- picious about the timing of Fon- stad's sick leave, so it hired an in- vestigator to conduct surveillance on Fonstad. Over two days in early June, the investigator recorded more than four hours of video of Fonstad operating a Bobcat ma- chine, shovelling gravel and doing landscape work. Fonstad owned a landscaping business on the side and Mosaic was aware of the business, which Fonstad had never tried to hide — the business name was even on the side of the truck he usually drove to work. On June 18, 2012, Fonstad contacted Mosaic's occupational health nurse and informed her he was cleared to return to work the next day. He faxed his doctor's documentation — which stated no operation of heavy equipment for a week until the effect of his medications was assessed. When Fonstad returned to Mo- saic, he was called into a meeting in which Mosaic suspended him without pay pending an investi- gation. Mosaic demanded all re- cords of his business during his medical leave and medical docu- ments supporting his absence by June 26, after which it would com- plete its investigation. Fonstad — believing he had nothing to hide and the landscape work for his business was nowhere near as stressful or taxing as his work in the mine — provided his personal medical information and details on the work he performed while on leave, which he listed as unpaid work. Mosaic determined the medi- cal documentation did not sup- port the sick leave he took after his vacation request was denied, considering he performed manual labour and operated heavy equip- ment for his landscaping business during that time. e company terminated Fon- stad's employment on Aug. 7 for being "dishonest and duplicitous about being medically unable to perform work at Mosaic, and (seeking) a medical note simply because your vacation leave was denied." The union grieved the dis- missal, arguing Fonstad was not dishonest: His medical leave was not because he was unable to per- form physical work, but rather he was mentally unable to perform his work at the mine, and he had never tried to hide his side busi- ness from Mosaic. Mosaic responded by point- ing out the collective agreement stipulated that an employee's se- niority would be lost if he worked for another employer while absent from Mosaic, unless the company approved the work or the employ- ee was laid off for lack of work. e arbitrator noted that at the time of Fonstad's termination, the reasons Mosaic gave were "dis- honesty and duplicity." Working for another employer was not given as a reason for termination and could not be considered part of the company's charge of dis- honesty at the time of dismissal, as Fonstad never lied about doing the work, said the arbitrator. But it was understandable for Mosaic to be suspicious when Fonstad took sick leave after be- ing denied vacation leave for the same time period, said the arbi- trator, and even more so when it learned he was doing landscape work while off work. Company only sought to support its suspicions However, Mosaic didn't seem to be interested in hearing Fonstad's side of the story, said the arbitra- tor. After the company suspended him pending an investigation, there were no attempts to un- cover any information that might change its suspicion of dishonesty. Fonstad wasn't given an opportu- nity to explain his side before be- ing terminated, and the charges of dishonesty were based only on the observations of the investigator. ere was no attempt by Mo- saic to learn more about Fonstad's medical status before it termi- nated him, which was particu- larly surprising since one of his supervisors had called him back out of concern when he called in sick, and the initial medical note indicated Fonstad had situational anxiety. Fonstad co-operated with Mosaic at every step, found the arbitrator, in providing the infor- mation the company requested and following protocol for calling in sick. He also kept communica- tion open with the company and provided additional information when Mosaic demanded more. The onus was on Mosaic to prove Fonstad wasn't sick and was dishonest about his sick leave and it failed to meet this onus, said the arbitrator. e evidence was that Fonstad was suffering from mental stress which prevented him from work- ing in the mine, and he didn't try to hide his landscape work. As a result, Mosaic did not have just cause to terminate Fonstad's em- ployment, said the arbitrator. Also, the reason for requesting the vacation leave in May was so he could attend his grandmother's birthday, which he didn't do when he was off sick on the same dates, pointed out the arbitrator. "(Fonstad) was unwilling and unable to work in the mine and operate dangerous mine equip- ment and place the life of his co- workers at risk during this period where he suffered from situational anxiety requiring counselling and medication." Mosaic was ordered to reinstate Fonstad with full compensation for loss of pay and benefits. For more information see: • Mosaic Potash Colonsay ULC and USW, Local 7656, Re, 2014 CarswellSask 287 (Sask. Arb.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at Jeffrey.r.smith@ thomsonreuters.com or visit www. employmentlawtoday.com for more information. Worker co-operated mOSAIC < pg. 5 Credit: David Stobbe/Reuters A worker examines a pile of processed potash at a Mosaic Potash mine storage facility in Colonsay, Sask. perceived as best practice, it's also completely accepted by society," he said. "ere used to be a stigma attached to movement; today, it's almost a badge of honour. "e future is demanding that we spend more effort and time within succession planning be- cause of the baby boomers, be- cause of the cost of recruitment, because of the competitive nature or the mindset of the way people will move from company to com- pany for what's best for them and what's necessary or we're saying is best practice within your career. What we're creating is the oppo- site effect, so succession is an off- set or balancing strategy to those particular initiatives." While companies might have a handful of people they consider potential successors, eventually some of these people move on — there are leaks at both ends of the hose, said Lisa Cefali, vice-pre- sident of executive search at HR consulting firm Legacy Bowes Group in Winnipeg. "The reality is you've got a shrinking workforce overall and so without the proper leadership, ob- viously companies won't succeed and I think it's always really easy to focus on the day to day, what needs to get done today, versus putting in that extra time," she said. "A lot of time's spent on recruit- ment and trying to fill the vacan- cies, and maybe we're at a time now where that's (not realistic) anymore — companies will never be at zero vacancies — and then they can now work on professional development." HR's role While succession planning makes sense for the long term, boards want results, so they want HR de- voting time to measurable results that impact growth, customers or revenue, said Cefali. "Coming in and being able to say that, 'OK, you're going to go spend six hours on leadership training or coaching,' that's a long- term investment and some see it and some don't." Without the right leadership to truly engage, motivate and share a vision with associates, you can't be successful, said Schwietz. "It has to be the priority of every business," she said. "Most boards now are also really aware and very good at questioning their HR leadership around what kind of risk mitigation you've got around your brilliant leaders and talent inside the organization, so succession planning has become even bigger and more of a hot topic because it's very important to boards." But certain core, focused exec- utives may perceive that certain second- or third-level or longer- term HR initiatives may not be the best use of their sparse funds giv- en the current market conditions — though it makes good sense to anyone, said Diemert. "When you start to prioritize, some of these longer term ac- tivities that don't have immediate shareholder value… they some- times get put on the backburner." For those organizations that have leadership capacity all fig- ured out, "quite often that has to do with the standing of HR within the overall organization and their ability to sell their platform," he said. "Although it's necessary, we all know it's a good thing to do, we just really don't know how much ROI is directly related to it. ere- fore, when you go to sell it, you'd better be charismatic and have a lot of sway because you can't put the numbers on the table." Boards want to see specific, measurable results SUCCESSORS < pg. 3

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