Canadian HR Reporter

CanaDian hr reporter november 17, 2014 iNsiGHT 19 Ghomeshi saga shows limits for union members Employees covered by collective agreement have limited rights, remedies in fi ghting terminations e Jian Ghomeshi case raises a lot of diff er- ent issues. from an employment view- point, it is a reminder that workers who are governed by a collective agreement have very limited rights and remedies when it comes to fi ghting a dismissal. Many commentators, myself in- cluded, have publicly wondered about Ghomeshi's decision to pursue the grievance process under his collective agreement while also fi ling a lawsuit in the civil courts. e law is clear that if a collective agreement applies, the employee cannot pursue a wrong- ful dismissal claim in court. Ghomeshi's civil claim is now a matter of public record and copies of it can be found online. Not surprisingly, it is not a claim for wrongful dismissal. That is because such a claim would be thrown out by the courts, which would affi rm that his rights are limited to those provided by the collective agreement in place. is raises an important point Canadian employees should understand: While being a member of a collective agreement does bring some benefi ts, it also signifi cantly limits an employee's legal rights and remedies. On the bright side, if the em- ployee is forced to pursue a grievance, he will not incur the legal fees a typical plaintiff in a civil lawsuit would. e union is his legal representative and must provide counsel in most circumstances. at being said, the fact that the union is his legal representa- tive can be a signifi cant impedi- ment. Rarely does a week go by in which our fi rm is not contacted by an individual who feels as though she is being treated unfairly and the union is not looking after her best interests. Unfortunately, we must explain that unionized workers do not have the option of simply choos- ing to retain counsel and pursuing a civil action. Rather, they must work through the mechanisms provided by the collective agree- ment and seek the assistance of their union. If they believe the union is not properly representing them, then they can go before the Ministry of Labour and bring what is com- monly known as a DFR (duty of fair representation) claim. Effectively, they would have to show the union has breached its duty to fairly represent them. ere are lawyers who special- ize in such claims and most will tell you that only a very small percentage of those claims are successful. e threshold for the union to prove it has met its duty of fair representation is extremely low. And unless the court concludes that the union failed to meet that duty, then the individual employ- ee will have no remedy available whatsoever. Ghomeshi and his lawyers have attempted to creatively circumvent the collective agree- ment by fi ling a civil claim that is not based on a claim for wrongful dismissal, which would be obvi- ously off side. However, the law is that any claim that relates to the matters covered by the collective agree- ment is to be dealt with via the grievance process. is is inter- preted quite liberally. As a result, it is quite unlikely the civil action will succeed. However, as many have already stated, Ghomeshi's approach seems to be more about public relations than law. Average employees will not have the luxury of retaining counsel to file a $55-million claim while also retaining a pub- lic relations fi rm to advise them. eir options, especially if they are unionized, will be far more limited. Stuart Rudner is a founding partner of Rudner MacDonald in Toronto. Fol- low him on Twitter @CanadianHR- Law or he can be reached at srudner@ rudnermacdonald.com. Does workplace wellness really matter? Question: Does workplace wellness really mat- ter? we're facing a lot of internal hurdles to our program, and getting questioned on spending. what are the components of a solid wellness program and what can we reasonably expect from our investment? answer: More companies are in- vesting in comprehensive work- place health and wellness pro- grams and employing workplace wellness specialists to work with core operational staff to positively impact wellness and productivity. Some senior leaders, however, are skeptical and argue there is no re- turn on investment (ROI) from in- vesting in employee wellness and they refuse to dedicate time and money on such programs. What is the issue? Critics of wellness programs believe wellness specialists are simply focused on employees' physical well-being or, more spe- cifi cally, metrics such as the body- mass-index (BMI). Wellness lead- ers who simply focus on lowering body weight or BMI are really do- ing a disservice to the fi eld. Wellness programs are more than just the Biggest Loser and wellness leaders are not personal trainers like Ben Stiller in the movie Dodgeball; they shouldn't specifi cally target overweight and obese employee populations, and BMI is not the bottom line. If participating in wellness programs does lead to dropping a few unwanted pounds, that is great. However, the goal is to help employees maintain or improve their health and become more productive. Critics also argue that wellness programs do not produce a posi- tive ROI. However, research has demonstrated that integrated, comprehensive wellness pro- grams that are correctly targeted to the health conditions most prevalent in a workforce will gen- erate a positive fi nancial return. e challenge is, only one-third of wellness leaders measure pro- gram outcomes and less than one per cent do so in a rigorous way. So what is workplace wellness? An eff ective wellness strategy sup- ports employees who are physical- ly and mentally healthy, as well as those who have health-risk factors or diseases. e program design should address the physical, psy- chological and social health of em- ployees, and should include both colle c tive and indiv idu al interventions. It can be a challenge to address all employee needs, given that their health statuses vary widely. Initiatives must be put in place to: • maintain the health of people who are healthy • identify the health-risk factors and medical conditions present in the employee population • provide early interventions for employees with health risks and decrease the impact of serious or chronic medical conditions on individual employees and the organization. What can wellness programs do? Workplace health and wellness has many benefi ts that include reducing health-care costs, im- proving productivity, making workplaces more attractive and reducing turnover. Comprehensive wellness pro- grams can help tackle major is- sues facing the workplace in the following areas: mental health: is is a major issue for Canadian employers as more than 500,000 Canadians will be absent from work on a given week because of mental illness, according to the Mental Health Commission of Canada. Forty-four per cent of Cana- dian employees reported expe- riencing a mental health issue and only 26 per cent believed that their supervisor "eff ectively managed mental health issues," found a 2011 Conference Board of Canada report based on a sur- vey of 1,010 people. disability management: e estimated direct cost of absen- teeism to the economy was $16.6 billion in 2011 and the average absenteeism rate among Canadi- an organizations in 2011 was 9.3 days per full-time employee, ac- cording to the Conference Board of Canada. Eff ectively managing disability early on is very important, as em- ployees who are on leave for more than 12 weeks only have a 50 per cent chance of returning to work, according to a 2013 Conference Board of Canada report. To help companies better man- age disability in the workplace, organizations should be encour- aged to implement a number of enabling strategies including dis- ability prevention, rehabilitation/ treatment, benefi t plan design, case management and return to work. Healthy, active living: Em- ployees working in offi ce settings spend the majority of their time sitting, and recent research has linked the amount of time sitting with poor health. To compensate for this lack of activity, more and more workplaces are providing healthier nutritional alternatives. Two-thirds (65 per cent) of or- ganizations off er some type of nu- trition program, found a 2013 re- port from the Conference Board of Canada. Upcoming research from the Conference Board will feature case studies with Canadian em- ployers on how employers in- crease physical activity and de- crease sedentary behaviour in the workplace. Health and safety: It is im- perative for organizations to put health and safety on their board's agenda for many reasons, one of which is the board's ability to oversee risks in multiple business lines and functions. e Conference Board will be releasing two reports in the near future on fatigue management and substance abuse in the Cana- dian workplace. Preliminary fi nd- ings show 78 per cent of employ- ees report to work fatigued at least some days per week, and about 32 per cent of employers use an alco- hol and drug testing program at their worksites. Final thoughts Workplace wellness is essential for both employees and employ- ers, and creating healthy brains and healthy bodies are important to an organization's bottom line. An eff ective wellness program should consider the following fi ve key steps: 1. Setting the stage 2. Program design 3. Program implementation 4. Program management 5. Program evaluation. Regular evaluations of the pro- gram will allow for fi ne-tuning and optimization of practices, identify the initiatives that have the biggest impact, and ensure that suffi cient fi nancial and human resources are dedicated to them. Louise Chénier is manager of work- place health and wellness research at the Conference Board of Canada in Ottawa. She can be reached at (613) 526-3090 ext. 305 or chenier@con- ferenceboard.ca. Charles Boyer is a research associate, workplace health and wellness research, at the Confer- ence Board of Canada in Ottawa. He can be reached at (613) 526-3090 ext. 305 or boyer@conferenceboard.ca. stuart Rudner GUest CoMMentarY while being a member of a collective agreement does bring some benefi ts, it also signifi cantly limits an employee's legal rights and remedies. an eff ective wellness strategy supports employees who are physically and mentally healthy, as well as those who have health-risk factors or diseases. Does workplace wellness really mat- ter? we're facing a lot of internal hurdles to our program, and getting questioned on spending. what are the components of a solid wellness program and what can we reasonably expect charles Boyer and Louise chénier toUghest hr QUestion

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