Canadian HR Reporter

Canadian HR RepoRteR december 15, 2014 12 News demands — the long hours aren't very attractive." A lack of effective, flexible work arrangements has a real impact on women's career aspira- tions, said Alex Johnson, execu- tive director of Catalyst Canada in Toronto. "e first takeaway for people when they see that is, 'Well, wom- en are self-selecting (out).' No, I think what women are doing is very quietly internalizing, 'I don't have the support to do this job or take on additional responsibilities the way I would need to be suc- cessful,'" she said. "ey don't see a way of doing it effectively." Another hesitancy might be around the fact that women lead- ers often don't have the same sup- port as male leaders, said Jennifer Berdahl, professor of leadership studies at the Sauder School of Business at the University of Brit- ish Columbia in Vancouver. "ey're stepping out of a tra- ditional gender role by taking on a leadership position, especially if they're in a company where that position has always been held by men before. It might seem like it's too much in the limelight to be the first women to hold it — you're under intense scrutiny. We've seen that with various women leaders… who are scrutinized, like Marissa Mayer (president and CEO) at Yahoo, and others who just experience a lot more scrutiny than a man stepping into that role, so that can be daunting," she said. Some women might also be concerned about the dynamics that may arise if their subordi- nates aren't comfortable working for a woman, said Berdahl. "Some of my work has shown that ambitious women leaders, women who want to be in po- sitions of leadership and have strived to get there, are still mis- treated by their subordinates or not respected by their subordi- nates in the same way that men who are similarly ambitious are," she said. "So there can be a lack of team spirit behind the woman who is taking on a traditionally male role — more questioning of her au- thority or her ability to tell people what to do." In fact, 36 per cent of women are concerned about perceptions of women in managerial roles, and 30 per cent are worried about perceptions of leadership capacity for women, found the Randstad survey. However, the survey did find some positive changes in terms of the perceived salary gap and women's willingness to speak up for themselves, said Tull. "Women are basically speak- ing up more and they're making it known and self-identifying that they're interested in higher-level positions and higher responsibil- ity. So that's a big positive change," she said. "ey also feel that it's more at- tainable. So we're making some strides where women are seeing more women at the top… and they think, 'I think I can do that.'" Making senior roles more attractive So, how can organizations make senior positions attractive to more female employees? The first thing employers should do is take a long look at their own corporate culture, said Johnson. "'What's going on? What is hap- pening in our organization that might have an impact on women's aspirations?'" she said. Also, organizations should try to identify and address any sys- temic barriers, said Johnson. "Odds are, if they look, they're going to find them." Another key factor is that of mentorship and sponsorship, said Tull — yet 76 per cent of survey respondents said they have never been mentored professionally. "If there's no one to take you un- der their wing and encourage you and follow your career, and basi- cally be the ambassador for your success, then I think women are somewhat hesitant," she said. People should have access to role models and access to men- tors, but also access to champions — people who will have not just conversations with them but con- versations about them, and about their potential, said Johnson. "Any time women feel support- ed in doing their job well or tak- ing on more, they're much more apt to say, 'Yes, sign me up — I'm ready to take it on.'" Getting more women interest- ed in leadership positions isn't just an organization's responsibility, said Tull — it requires a holistic approach. "It would start from the family, I believe, so young ladies being encouraged by their families to be confident, take charge, go after their dreams and not box them- selves in. It's the educators, all the way through school, encouraging females to do things and challenge themselves outside of the comfort zones — going into the STEM (science, technology, engineer- ing and mathematics) fields, for instance, or going into the non- traditional (areas)," she said. "Finally, I believe women need to take charge and to speak up and to go after those roles, and to chal- lenge themselves and be OK with not being perfect." Mentorship, support system key ingredients womeN < pg. 1 women are very quietly internalizing, "I don't have the support to do this job." ey don't see a way of doing it effectively. don't know enough to say that termination of his employment would be justified." It's reminiscent of the Stanley Cup riots in Vancouver in 2011, said Bhalloo, where people were caught on camera looting and vandalizing. One woman who worked as a receptionist, for ex- ample, was fired after she was caught stealing tuxedo pants. "e company found out af- ter the fact, when this hit in the media, particularly the YouTube video, and they found that that was prejudicial to their interests and they terminated the em- ployee's employment for off-duty conduct." e prominence of the employ- er's name also makes a difference. If a sawmill worker is convicted of child pornography in his off- hours, said Gregory Heywood, a lawyer at law firm Roper Greyell in Vancouver, "as repugnant as the allegations were, there would be no basis to impose any disci- pline on him from the employer's perspective because… it's not re- lated to his work and there was no association or damage to the employer's reputation because the employer's name was not associ- ated with this misconduct." An employer in Potvin's situ- ation should certainly bring the employee in for an interview to find out what's going on and make its own assessment about whether this misconduct would impinge upon his employment and the viability of his employment rela- tionship, he said. "If they find, for example, that he's a patently dishonest, untruth- ful person that you now cannot trust and he has access to your parts inventory, or he records his time on a timesheet that isn't verified by a supervisor or he has these positions of trust or re- sponsibility, then you may have grounds to assess that employ- ment relationship." The mere fact of a criminal conviction doesn't in and of itself give an employer just cause for dismissal, said Kenneth orni- croft, a lawyer who teaches at the University of Victoria. "Criminal convictions could be anything from shoplifting to impaired driving to murder so there's a whole range of morally culpable conduct within that," he said. "All criminal conduct, I sup- pose, is to some degree morally reprehensible but within the con- tinuum of reprehensibility, (the Gervais case is) at the lower end. "It would be difficult in these circumstances for an employer to justify termination on that ba- sis alone unless it was the kind of employment where the person's character was really an essential feature of their employment." And in terminating someone with a criminal conviction, the provinces offer varying forms of human rights protection, said Heywood. "In British Columbia, the pro- hibition is discrimination against someone who has a criminal record that's pertinent to your employment," he said. "In this case, where he's impersonating an army personnel, absent any misrepresentation on his hir- ing, the employer would be in a difficult spot, I think, to justify termination." If an employee is sentenced to jail time and then fired, the em- ployer is not so much terminat- ing the employee for just cause related to her conviction but for her inability to do the work, said ornicroft. "It's almost like a constructive resignation or abandonment." And with shorter custodial sentences, arrangements can be made for the person to serve it on weekends, he said. "Often the court is inclined to do that because they don't want the person to lose their job." But you'd have to distinguish between union and non-union roles when it comes to providing a leave of absence, said Heywood. "Case law suggests it's some- thing the (unionized) employers are obligated to consider and, absent some compelling reason, generally speaking, a leave up to six months if you deal with an in- carceration is something that they ought to accommodate." However, if the person holds a key position that would be hard to fill, the employer may be able to claim undue hardship, he said. "In a non-union world, if some- one can't come to work for six months, that's generally grounds to say goodbye." Another consideration in ter- mination of employment is em- ployer reputation. "As clients of Potvin, be assured that these events do not distract us from the work and services we provide you every day and we con- tinue to focus our energy on your projects," said the company on its website. e Gervais situation has cer- tainly put the construction com- pany under scrutiny, said Bhalloo, and people may ask, "What kind of people are you hiring?" "But is it so prejudicial that the employer is justified in this case of terminating the employee's em- ployment? I would have difficulty saying that in this particular case." But the prominence of the em- ployer makes a difference. "I had never heard of Potvin Construction. I'm sure they're a reputable company but will that really influence anybody in not going to Potvin because of this individual? I have my doubts," he said. Accommodations At this point, a paid suspen- sion makes sense, according to Bhalloo. "If they had suspended him without pay, that would suggest they're already actually penalizing him," he said. "In this particular case, there is a report of his act but nobody knows about his intent part and whether there are some issues that mitigate in any way what he did. So it's a little too early and that's why I think Potvin is smart in in- vestigating this and finding out and giving him an opportunity to respond. ere may be a defence to what he's done." Employers have to be careful not to do anything that would get them in hot water, he said. "It's important for them to in- vestigate and find out his side of the story and what's really going on, whether there's a disability in- volved in what he's done and not penalize him egregiously if there's some issues here, mental health issues or what have you, that have led him to do what he's doing." If there was a psychological is- sue involved and evidence to sup- port it, that ties the employer's hands to a degree in terms of ter- minating the employee without providing some kind of accom- modation, said ornicroft. But if Gervais did represent as a veteran and that was a material fact in being hired then, in law, the contract becomes voidable and the employer can rescind the contract based on misrepresenta- tion, he said. "That's a tough argument to make because, for misrepresenta- tion cases, you need to show that there was a misrepresentation, that it was material and that there was reliance." If it's a case where a person with a clean criminal record is hired by a daycare and then is convicted of child abuse, the employer is arguably vicariously liable for the employee's conduct, said Bhalloo. "How can an employer, even with background checks, divine what may happen in the future? So a lot of times, they go into a situa- tion doing whatever due diligence that they can possibly do and yet come out on the end where the employee does something that nobody ever contemplated." Paid suspension makes sense while investigating FrANck GerVAIs < pg. 1 e mere fact of a criminal conviction doesn't in and of itself give an employer just cause for dismissal.

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